Ownership

6.2.1 Introduction

There has been much speculation about the nature of ownership in Roman law. It seems that the Romans lacked a precise concept of ownership in early (i.e. archaic) „law.

The impetus for the transition from an undifferentiated concept of ownership in early Roman law to the technical concept of dominium in classical (i.e. the first three centuries of the Empire) law may be ascribed to a variety of factors. These include the profound social and economic changes in the later Republic coupled with the intellectualization of Roman legal science and the changes in civil pro­cedure (see generally, Diosdi, Ownership). The recognition of a variety of propri­etary interests necessitated the elucidation of a clearer notion of ownership, the work mainly of the jurists of the late Republic and early Empire. Dominium was the concept that emerged. It was the highest, the ultimate entitlement to property, specifically distinguished from lesser types of proprietary interest. As Capogrossi Colognesi, L., 'Ownership and Power in Roman Law', in OHRLS, 524-36 observed (at 524): '[Ownership] is the keystone not only of the Roman legal system, but also of the entire Roman social framework'. The owner was lord and master (dominos) of his property, entitled to a vindicatio—the standard proprietary remedy securing the rights of the owner (for a survey of the procedural peculiarities of this remedy, see Hausmaninger, Gamauf, and Sheets, Casebook, 207-22).

6.2.2 The essentials of dominium

Three basic conditions had to be satisfied in order for a person to have dominium: he or she had to have commercium; the property had to be capable of being privately owned; and the property must have been acquired by an appropriate method of acquisition.

6.2.2.1 Commercium

This requirement meant that only Roman citizens (and foreigners to whom commer­cium had been granted) could have dominium. Indeed, dominium was often described as ownership 'by the right of the Quirites' (an ancient name for Roman citizens). From this, it would appear that foreigners could not own things under Roman law. But that would have been absurd: Roman commerce could not have flourished if foreigners had not been allowed some legal interest in what they acquired. The law permitted such an interest—peregrine ownership. Little is known about this type of ownership, but it seems to have been protected by a modified form of the vindicatio. Peregrine ownership could be obtained through the ius gentium modes of acquisition (see generally 7.1) but not through the ius civile modes (see 7.2). The general grant of citizenship by the Emperor Caracalla in AD 212 greatly reduced the importance of peregrine ownership. It finally disappeared under Justinian.

6.2.22 Property capable of private ownership

A person could have dominium only over property capable of being privately owned. We have seen already that certain types of property were outside private owner­ship. Provincial land was probably the most important case.

6.2.2.3 Appropriate mode of acquisition

Dominium over res mancipi could not be acquired unless such property had been transferred by mancipatio or cessio. But what was the position of a transferee of res mancipi if mancipatio or cessio had not been used?

To begin with, it may be wondered why anyone should attempt to transfer such important property by an inappropriate mode of conveyance. Mancipatio and cessio were formal conveyances, the former requiring several witnesses and strict adherence to ceremony, while the latter necessitated the presence of a magistrate (see 7.1.1 and 7.1.2). When Rome underwent economic transformation during the Republic, these formal modes of conveyance came to be seen as cumbersome and anachronistic. Commercial life would have ground to a halt if the praetor or sev­eral witnesses had to be found every time that a slave or a horse was sold. Instead, increasing use was made of delivery (traditio) to transfer res mancipi. This would not have occurred unless the transferee's acquisition had been legally protected, i.e. recognized as a worthwhile proprietary interest, even if not strictly dominium. It was the praetors who were largely instrumental in protecting the transferee's interests by developing the concept of bonitary ownership.

6.2.3 The nature of ownership

To what extent did the owner in Roman law have unlimited freedom to do as he pleased with his property? This controversial question has prompted a wide range of views, especially during the course of intellectual debates of the late nineteenth century when German scholars used Roman law to create a civil code for Germany. The modern tendency is to regard Roman ownership as having been somewhat less absolute than was once thought.

6.2.3.1 Land

As a general rule, a landowner owned everything above and below the ground. It followed that ownership could be divided vertically but not horizontally, e.g. a farmer could divide a field by selling part of it—that is vertical division. But in a block of flats the inhabitants of the upper stories could not be owners—they were simply tenants with contractual rights, not owners, see Crook, Law and Life of Rome, 143 ff. However, there were exceptions to the rule that a landowner owned everything above and below ground. For example, decrees were occasionally passed in the Empire giving the State rights in precious minerals that were found under­ground. And if fruit fell from your neighbour's tree into your garden, he had a right under the Twelve Tables to collect it.

6.2.3.2 Restrictions on owners

There was a considerable range of restrictions to which the Roman owner was subject, mostly inspired by considerations of public policy. Most of these restric­tions date from the archaic period, but additional remedies were added in classical Roman law (see Capogrossi Colognesi 'Ownership and Power in Roman Law', 529). Under the Twelve Tables there had to be an open space of at least five feet between neighbouring properties, and owners could not plant trees within five feet of the boundary (nine feet for olive and fig trees). Rules also existed to deal with overhang­ing branches, fruit from the neighbour's trees falling into your yard, smoke from a neighbour's cheese factory, protrusion of walls, and boundary disputes.

Ulpian, Edict, book 53: This action is appropriate whenever water is likely to cause damage to a field as a result of a man-made construction, that is, whenever someone causes water to flow elsewhere than in its normal and natural course... (D.39.3.1.1.)

The neighbour whose property was threatened by these actions could sue with the actio aquaeplimae arcendae for removal of the structure as well as for compensation, but this action could only be brought against the neighbour who had made the alterations or altered the natural flow of water (see D.39.1.2.; D.39.3.3,). Damage threatened or caused by the alteration of the natural flow of water for the purposes of agricultural cultivation did not fall under this action (see D.39.3.1.5.).

Some of the restrictions outlined previously demonstrate an admirable feature - of Roman law—that an owner of property has to show respect (in the use of his property) for the interests of his neighbour. It would thus be short-sighted to view. restrictions simply in negative terms. Restricting a man from using his property self- ishly is to protect and enhance the ownership of his neighbour, a factor to be con­sidered when assessing how free an owner was to do as he pleased with his property...

The need to show respect for a neighbour's enjoyment of his property can be illustrated also by the rules protecting the enjoyment of light and views. Although. there is inconsistency in the texts, it seems that there was in classical law a right to light—the unreasonable blocking of light was considered unlawful. Some support for this view lies in the fact that it was possible to create a servitude allowing the building of property beyond a reasonable height. If light could have been freely obstructed, the servitude would have had little or no purpose.

If a dispute arose about the right to light, arbitrators could be appointed to adju­dicate. What was considered to be a reasonable amount of light? The formulation of an appropriate rule is obviously fraught with difficulty in such a case. The Roman attempt was inevitably vague:

Marcellus, Digest, book 4:... in the case of obstructing light and thus darkening a house... the following qualification is conceded. The light should not be blocked out entirely, but as much should remain as is sufficient for reasonable daily use of the property by the inhabit­ants. (D.8.2.10.)

A right to a view is discernible in classical law, even if it was rather limited. A person could sometimes be stopped from building if this obstructed his neighbour's view. Again, some evidence for such a right is to be found in the fact that a servitude could be created allowing a view to be blocked—the servitude would hardly have been necessary if there had not been a right to a view. Not every view was protected, only those regarded as distinguished, e.g. a view of the sea or mountains, the mat­ter being adjudicated through inspection by arbitrators. See Rodger, A., Owners and Neighbours in Roman Law (1972), ch. 4, also ch, 2 (Right to light). The very existence of the concept of a fight to a view, limited though it was, reflects great credit on Roman law, which on occasion could attain sophisticated levels of development, even by modern standards.

The law imposed all the restrictions on ownership that have been outlined so far. There were, in addition, those restrictions that were created by owners themselves (or their predecessors). This could occur, for example, through contracts, some of which were capable of creating limited proprietary interests rather than just rights in personam. However, it was servitudes that in practice constituted the great­est voluntary detraction from ownership. For example, the granting of a usufruct : in property would substantially deprive the owner of proprietary benefits for the duration of the grant.

More than one owner, notably in cases of joint inheritance or partnership, could own property simultaneously. Co-ownership inevitably resulted in restrictions on.the rights of each owner. The basic position was that each could do as he liked with his own individual share, but the disposition of the property as a whole needed unanimity.