9. OWNERSHIP
We have so far been proceeding in truly Roman fashion and have left undefined our most fundamental concept—ownership.
It can indeed be said that ownership is either so simple as to need no explanation or so elusive as to defy definition. At its simplest it is the difference between mine and thine, at its most sophisticated it is the ultimate right, the right behind all other rights. The elusive character of ownership can be appreciated if one attempts to give a precise meaning to the often-repeated,but, as we shall see, misleading statement that Roman ownership is markedly ‘absolute’.
The most obvious sense in which ownership might be ‘absolute’ is that of enjoyment. Though there is no Roman definition of ownership, there is no lack of Romanistic ones, and these are usually in terms of enjoyment. Thus, the commentators adapted the definition of usufruct by adding to the rights of use and enjoyment the right of abuse—ius utendi fruendi abutendi. The adaptation is a little forced, since ‘abuse’ has to include alienation, but it is also, in its emphasis on the plenitude of enjoyment conferred by ownership, misleading. In the first place, no enjoyment can ever be absolute in the sense that it is free from any restrictions whatever. At the very least the use, enjoyment, and abuse of his property by one owner must be reconciled with the equal use, enjoyment, and abuse by all other owners of their property. In a simple sense this is one of the functions of law. Moreover, in all but the crudest system of law there will be other restrictions which, in the general interest, are imposed on the enjoyment of the owner, and the extent of these restrictions will depend very largely on the political and economic ideas of the time.
The enjoyment of the modern English owner is far less absolute than that of his Roman predecessor, but this difference in the content of ownership derives from a difference not in the technical legal character of ownership but in the extent to which the public law restricts the rights of the owner in the general interest. For this reason the French Civil Code, though it declares that ownership is ‘the right to enjoy and dispose of things in the most absolute way’, adds the proviso that such enjoyment must not contravene the general law.But even when it is thus qualified, a definition in terms simply of enjoyment is misleading. For, as we have already seen, the existence of iura in re aliena will sometimes leave the owner with no present rights of enjoyment at all: the owner of a thing which is subject to a usufruct or of land which is subject to a right of emphyteusis or superficies has no more than an ultimate right to enjoyment. For this reason ownership has been defined as the ultimate residual right in a thing, the right which will remain when all others have expired.
A second sense in which ownership might be said to be absolute is that of title. The owner’s right in this sense is not simply relative, not simply better than other competing rights, but the best, or rather the only, right of its kind. This is, superficially at least, true of Roman law. There is nothing intermediate between the right of ownership and the ‘fact’ of possession. If A has possession, but not ownership, of something which is taken from him by B, he can proceed against B in reliance on his possession; but if the thing is taken from B by C, A has no remedy against C, even though, morally speaking, he has a better right to it than C. For a plaintiff who cannot rely on possession must show ownership. In other words, Roman law has an action asserting ownership and an action asserting possession but no action asserting merely a right to possession.
It is otherwise in the English law of movables,1 which has an action asserting possession and an action asserting a right to possession, but no action asserting ownership as such. The owner only has an action in English law when he also has (as indeed he usually does have) an immediate right to possession. In the example given above, A will have an action against both B and C; but if A has been given possession of the thing by the owner for a term of, say, six months, the owner will have no action at all, because until the six months have elapsed he will have no immediate right to the possession of the thing. For our present purposes, however, the corollary of this is more important—that in Roman law a person asserting title to a thing must show that he is owner, whereas in English law he need only show that he has an immediate right to possession (and also perhaps be prepared to show that his right is better than any other of which his opponent can adduce evidence). Moreover he can show a right to possession merely by showing that he previously had possession and that he lost it without his consent. There is here, superficially at least, a striking contrast. The Roman plaintiff must show an absolute title, the English plaintiff simply a right to possession. But how could the Roman plaintiff prove his absolute title? This is the probatio diabolica of the commentators—only the devil would ask for proof of ownership, since what the plaintiff will in the ordinary case have to do is to show that he obtained it lawfully from X, that X obtained it lawfully from Y, and so on until he can trace his title to an original mode of acquisition. A moment’s1 The doctrine of estates (above, p. 145) makes any instructive comparison with the English law of land impossible.
consideration of the things which one ‘owns’ oneself will show that such an undertaking will very rarely succeed.
It is sometimes said that the escape from the plaintiff’s dilemma lies in the very short periods of usucapion. But usucapion is no easier to prove than ownership itself. It is true that possession for the requisite period can readily be proved, and that good faith is presumed until the contrary is shown, but there remain the requirement of iusta causa and the requirement that the thing should not have been stolen or taken by force. Iusta causa will indeed sometimes be provable—particularly where land or a movable of considerable value is concerned—but only a man of unusually careful habits will be able to show how he came by all the things which he claims to own. And even if he can show, for example, that he bought the thing from X many years ago and that he has had possession of it uninterruptedly ever since, he still cannot prove the negative proposition that it has never been stolen or, in the case of land, taken by force.[67] The Romans themselves, with their habitual lack of interest in questions of evidence, never discuss this question, but one is driven to the conclusion that, in spite of the wording of the vindicatio, the Roman plaintiff can hardly have been required to do more than his English counterpart, viz. to show a right to possession deriving from possession itself, and to be prepared to show that it was better than any which the defendant could adduce in answer. Both the French and the German Civil Codes in fact formally establish a presumption that the possessor is owner. Indeed it is on reflection obvious that, original modes apart, ownership will only be positively provable if there is in operation either a system of registration of title, or a system of prescription which requires no more than possession and the lapse of time. As we have seen,2 the former can in practice only apply to land or very special movables, and the latter comes near to equating ownership with possession and therefore makes possible the proof of ownership only by depriving it of its ordinary meaning.Roman ownership was therefore not absolute in the sense that the plaintiff in a vindicatio was required to prove that he had the best and the only right.
The significance of the Roman idea of absolute title lay rather in the absence of any remedy to protect the tertium quid between ownership and possession—the right to possession which can make no claim to be ownership. A man is either owner or he is not owner. But even this characteristic of ownership, which we have referred to as its uniqueness or indivisibility, is, as we have seen, only verbally true. The Romans certainly adhered to the dogma of the uniqueness and indivisibility of dominium, but they were able to do so only by turning a blind eye to the claims of bonitary ownership and bona fide possession to be classed as forms of ownership. Both are clear exceptions to the principle of indivisibility. Each is a tertium quid between ownership and possession, the bonitary owner being owner in all but a few technical details, and the bona fide possessor being in effect a relative owner—an owner as regards everyone except the dominus. The Roman lawyers here never came to terms with their own creations.size=4 color=black face="Times New Roman">We have seen also that usufruct might have constituted a threat to the indivisibility of ownership, but was prevented from doing so by the lawyers’ insistence on its inalienability and also by their failure to grasp the advantages held out by the idea of quasi-usufruct. Emphyteusis and superficies, on the other hand, being freely alienable, did make a serious inroad on the indivisibility of ownership, but they were admitted to the private law too late for any theoretical account to be taken of this inroad. The lawyers of the late Empire were content to leave them simply as institutions sui generis.
The absoluteness of Roman ownership can, perhaps, be better seen in what we have called its inviolability—in the principle that a man cannot lose ownership without his consent, with its corollary that a man cannot pass a better title than he has. We have seen that the only exception to this principle of inviolability was prescription, and that even that was a very limited exception when contrasted with the practice of the modern civil law. In this feature the individualism of Roman law is most marked, but since it is a feature which to a considerable extent English law still shares, it is perhaps less noticed by the English student than by his colleague in the countries of the Civil law.
More on the topic 9. OWNERSHIP:
- Ownership
- Co-ownership (communio)
- Acquisition of ownership
- Ownership
- Ownership
- Ownership
- Acquisition of the ownership of fruits
- The acquisition of ownership in Roman law took various forms.
- Derivative modes of acquiring ownership
- Original modes of acquiring ownership
- The relationship between contract of sale and transfer of ownership
- Acquiring Ownership
- THE PASSING OF OWNERSHIP
- In the previous paragraphs, frequent references emphasized the notion of possession as a key to the acquisition of the right of ownership.
- The tension between ‘public seeds' and IPRs: ownership as a factor of rights imbalance
- Creation and partition of joint ownership
- This chapter addresses the Roman law of ownership and the rights that modified it, including, for instance, the rights of predial servitude and usufruct.
- So far in this chapter, we have concerned ourselves with ownership (and, related thereto, possession) as the real right that accrued to a person in respect of his own property (ius in re propria).
- Chapter 8 Tapia's Banquet Hall and Eulogios' Cell: Transfer of Ownership as a Security in Some Late Byzantine Papyri[451]