Ownership

In principle, ownership (dominium ex iure Quiritium)^[329] was the most complete or extensive right a person could hold in respect of a corporeal thing.

As the most extensive of all real rights, ownership had to be acquired in a prescribed manner. Roman law knew several modes of ownership acquisition which all depended on some recognized and public assertion of control of the property. Some of these modes were peculiar to Roman law and, accordingly, derived from the ius civile; other modes were also familiar to other peoples and therefore were regarded as originating from the ius gentium (identified in this context with ius naturale)⁸ The modes of acquisition may also be classified into ‘original’ (or ‘natural’) and ‘derived’. Original modes of acquisition of ownership were those where the person acquired the right of ownership in respect of a thing without intervention by or dependence on another person. The principal modes of original acquisition of ownership were prescription (which assumed various forms), occupatio and accessio. Derived ownership occurred where a person acquired ownership of a thing from another.

An important principle relating to the transfer of ownership was that no one could transfer more rights to another than he himself had (nemo plus iuris ad alium transferre potest quam ipse haberet)⁹ The practical implication of this principle was that in Roman law a person who was not the owner of a thing could not transfer ownership of that thing to anyone else.^{[331] [332] [333]}

As a mode of acquisition of ownership, mancipatio was in form a combination of a formal cash sale and a solemn conveyance of ownership of a res mancipi. The formal procedure relating to this legal act required the presence of the transferor, the transferee, five male witnesses who were Roman citizens above the age of puberty, and another person (libripens) who held a bronze scale. The transferee grasped the object to be conveyed (if it was movable) or a representation of it (if it was immovable), struck the scale with a bronze ingot, and said: “I declare this object (e.g. a slave) to be mine by the law of the citizens (ius Quiritium) and has been bought by me with this bronze and this bronze scale.” The transferor said nothing, his silence showing his acquiescence. Assuming that the transferor was owner of the thing, ownership passed to the transferee. The mancipatio procedure dated back to a time before the appearance of coined money, and it probably developed from a formal cash sale when brass or copper was in fact weighed out on a scale (libra) and handed over simultaneously with the transfer of the object sold.

The in iure cessio procedure was used for a variety of purposes: to transfer ownership over corporeal property of every kind, whether res mancipi or res nec mancipi; to create and extinguish praedial servitudes and usufruct; and to transfer incorporeal objects other than obligations, such as an inheritance. As a mode of ownership transfer, in iure cessio (literally ‘divesting in law’) assumed the form of a fictitious lawsuit in front of the praetor in which the transferee claimed to be owner of the object being transferred, the transferor put up no defence, and the praetor adjudged the object to the transferee. In contrast with ordinary lawsuits, the magistrate’s decision actually transferred ownership and its effect was not only between the parties.

Usucapio, the most important original mode of acquisition of ownership, was a form of prescription that occurred when someone had undisturbed physical control of land for 2 years or of movables for one.^[338] The acquisition of ownership by usucapio presupposed that the property in question was susceptible to private ownership and that it was not stolen or seized by force. Furthermore, it presupposed the existence of a just cause (iusta causa) that is, an antecedent event or transaction by virtue of which the possessor would have become owner of the property under normal circumstances.^[339] Closely connected with the issue of iusta causa was the requirement of good faith (bona fides): the person who acquired possession of the property in question had to honestly believe that the relevant transaction (as a just cause) made him owner of the property.^[340] If the possessor at a later stage lost his good faith by obtaining knowledge of the true situation, his right to become owner of the property in question by usucapio was not affected.^[341]

The ownership of res nec mancipi could be transferred by traditio, the actual physical delivery of a corporeal thing on the grounds of some lawful cause (iusta causa). This mode of ownership acquisition originated from the ius gentium and was thus available to foreigners. Although traditio originally required the acquisi­tion of possession animo et corpore (‘with soul and body’) by the transferee, it was gradually recognized that in certain cases it would be sufficient for establishing possession if the transferee had been placed into a position of control (according to the views of the community) without actual physical contact with the thing.

Important forms of original acquisition of ownership were occupatio and accessio. The former was the act of taking possession of a thing belonging to no one (res nullius) but capable of being in commercio with the intention of becoming owner thereof. Things that could be acquired in this way included wild animals, birds, bees and fish; the spoils of war or booty seized from an enemy; an island arising in the sea; and things thrown away by a former owner. Reference may also be made in this connection to treasure trove (thesaurus), defined as something valuable hidden away for such a long time that the identity of its owner could no longer be established.^[344] According to a legislative enactment of Emperor Hadrian, a person who found a treasure on his own property became the owner of it whilst the ownership of a treasure discovered on another person’s property was equally shared between the landowner and the finder as long as the discovery occurred by chance.^[345] If the finding was the result of a deliberate search, the owner of the land in which the treasure had been found was entitled to the whole trove. Accessio occurred when separate things belonging to different owners were inseparably joined to each other or merged in such a manner that a new entity or object was established.

Besides dominium, Roman law recognized certain lesser forms of property­holding, which placed the holder almost in the position of civil law owner. Probably the best-known example of such ownership occurred when a res mancipi had been transferred to someone informally by means of mere delivery (traditio) rather than by means of the formal procedures of mancipatio or in iure cessio as the law required. In such a case, the transferee could not become dominus ex iure Quiritium of the property but the praetor intervened and placed such person in the factual position of a civil law owner. The property was then regarded as in bonis and the transferee as a bonitary owner who could acquire true Roman law ownership through possession of the thing for a prescribed period by means of usucapio.^{style='font-size:9.5pt;font-family: "Times New Roman",serif;color:black'>[347]} Other lesser forms of ownership included ownership of provincial land and own­ership by foreigners (peregrini). Provincial land was land under Roman control outside Italy that had not been granted the status of Italian land. Dominium of such land in principle vested in the Roman state or the emperor, depending on whether it was situated in a senatorial or imperial province. Although the Roman ius civile did not allow private citizens to acquire dominium over provincial land, the ius gentium allowed the acquisition of extensive control by individuals by natural methods of acquisition. Likewise, although foreigners were unable to utilize the civil law methods of ownership acquisition, the ius gentium made possible the acquisition of extensive control of property by peregrini by natural law methods. Furthermore, in suits involving rights to property, the law granted to foreigners fictitious actions, with respect to which the court would adopt the fiction that the foreigner was a Roman citizen.^[348]

3.3.2.1     Protection of Ownership

The most important legal remedies an owner could employ to protect their rights were the rei vindicatio and the actio ad exhibendum, an action usually employed before an owner initiated the rei vindicatio.

The purpose of the rei vindicatio was twofold: to determine ownership of the object in question and, once this had been established, to compel the defendant to return the object to its lawful owner or face being ordered to pay a sum of money. It should be noted that this action was directed at the recovery of the property itself and not at the person of the possessor thereof. The actio ad exhibendum was a personal action that was used to determine whether a particular person had posses­sion of a thing and, if this was the case, to compel that person to produce it. This action was available not only to the owner who wished to institute a rei vindicatio but to any person who wanted a thing to be produced so that he could claim possession of it at a later time.

A further remedy available to the owner was the actio negatoria, or ‘action of denial’. This action was instituted by the owner of landed property against any person who, without challenging the plaintiff’s right of ownership, claimed a servitude or similar right in respect of his land. The aim of such action was to obtain a court order confirming that the plaintiff had full ownership not encumbered by the existence of any right of the defendant and forbidding the latter from arrogating to himself such right or calling upon him to restore the status quo.

3.3.2.2     Limitations on Ownership

Even though ownership was the most extensive of all real rights, it could still be limited by operation of law or by arrangement.

Several restrictions of the former type were embodied in the Law of the Twelve Tables. There was, for instance, a ruling concerning the branches of trees protrud­ing over the boundary of a neighbour’s property. It was provided that the landowner whose property was affected could request a pruning of the overhanging branches to a height of 15 feet from the ground. If this request was not complied with, he could employ the interdictum de arboribus caedendis.^[349] Analogous remedies were available to an owner when the roots of a plant or tree belonging to a neighbour penetrated into his property. If the fruits of a plant or tree fell on adjoining land, the owner of the plant or tree was allowed to collect his fruit every second day. This right could be enforced by means of the interdictum de glande legenda.^[350] If a person artificially directed the flow of rainwater onto the property of a neighbour (e.g. by constructing a building or other work), the latter could employ the actio aquae pluviae arcendae to demand restoration of the status quo.^[351] Moreover, if a building or other structure in a dilapidated state threatened to collapse and cause damage to the property of a neighbour, the latter could request the praetor to compel the owner of the defective premises to provide security against possible damage by way of the cautio damni infecti.^[352]

Furthermore, it was possible for an owner to voluntarily limit his right of ownership by giving a lesser or greater degree of control over his property to another person; for instance, by leasing such property to another person or granting them a servitude over it.

Servitudes

In Roman law, a servitude (servitus) was a real right in property belonging to another (ius in re aliena), which restricted the rights and powers of the owner of that property. It therefore, amounted to a burden on property, to which the owner was required to submit.^[353] A servitude could be protected by way of a real action that the servitude holder could institute against anyone who infringed upon his right.^[354]

A servitude had to fall within a recognized class, and the four earliest—the right to pass through another’s land (iter), the right to drive draft animals across land (actus), the right to use a road on one’s land for driving in a carriage or riding on horseback (via), and the right to draw water across land by means of an aqueduct or furrow (aquaeductus)—were classified as res mancipi. Besides the rural praedial servitudes (iura praediorum rusticorum), such as the ones mentioned above, a number of urban praedial servitudes (iura praediorum urbanorum) were also recognized. The latter were concerned with urban utilization (regardless of whether the relevant immovable property was located in a city or the country) and displayed a more recent date than the rural praedial servitudes. Well-known servitudes of this type included the right to drive a beam into a neighbour’s building or wall (servitus tigni immittendi); the right to discharge rainwater through a gutter or something similar onto another’s land (servitus fluminis recipiendi); and the right to prevent a neighbour from obscuring one’s light (servitus ne luminibus officiatur).

Praedial servitudes could be either negative or positive: the holder of a servitude could either demand that the owner of the servient property should abstain from certain activity (e.g., erecting a building or structure exceeding a specified height), or was empowered by the servitude to conduct a specific task (e.g., draw water). The holder’s right was defined by the nature of the servitude and had to be exercised properly according to the standards set by the community. It is important to note, however, that servitudes could not impose a positive obligation on the owner of the servient land.^[355] The only exception to this principle derived from the servitus oneris ferendi (the right to have a building on the dominant land supported by a wall or building on the servient land), with respect to which the owner of the servient property had the duty to maintain the supporting wall of the building in good condition at his own expense.

Another category of servitudes were the personal servitudes (servitutes personarum or personales). Like the praedial servitudes mentioned above, the personal servitudes were real rights over another person’s property (iura in re aliena). Otherwise than in the case of praedial servitudes, however, these servitudes could be acquired over both movables and immovables, and were designed for the benefit not of a particular property but of their holder in his personal capacity. Furthermore, personal servitudes had limited duration as they were terminated by the death of the holder or the lapse of the period for which they were granted. Usufruct (ususfructus) was the earliest and most complete of the personal servi­tudes. It entailed the right to use the property of another person and to take the fruits thereof without impairing its substance.^[356] As a ius in re aliena, usufruct could be constituted over immovables, such as land and buildings as well as over movables that could not be consumed by normal use, such as cattle. The personal servitude of usus or use may best be described as an offshoot of ususfructus. It differed from the latter insofar as the holder of the relevant real right (usuarius) was entitled to use another’s property without taking the fruits thereof. The servitude of habitatio or inhabitation bore a strong resemblance to both usufruct and use. It entailed the real right, also attached to the person of its holder, to occupy and reside in another person’s house. Finally, the personal servitude of operae servorum vel animalium entailed the real right to use the services of another person’s slaves or beasts of burden.

Real Security

Property could also be burdened by real security: a real right created over the property of another to secure the performance of a debt or an obligation. During the history of Roman law, three forms of real security featured: fiducia; pignus; and hypotheca.

The earliest form of real security known to the Romans was fiducia, the transfer of ownership of a res mancipi subject to an agreement (pactum fiduciae) that when the debt was discharged the creditor would reconvey the thing to the original owner. Originally, the pactum fiduciae was not enforceable but based solely on the trans­feror’s trust ( fides) in the honesty of the creditor. Fairly early, however, the debtor was granted a personal action termed the actio fiduciae whereby he could compel the creditor to return the property and to pay compensation for any damage the latter may have caused to it by his fraudulent or negligent conduct.^[357] With the abandonment of the mancipatio and in iure cessio procedures in the later imperial era, fiducia as a form of security fell into disuse.

In pignus, which could relate to all kinds of property, the debtor delivered possession but not ownership to the creditor. The transfer of the property in question was accompanied by an agreement (pactum) of the parties that the property would be returned when the debtor paid his debt. The creditor’s possession of the object was protected by possessory interdicts against interference by third parties, as well as by the actio Serviana. By means of the latter action the creditor could claim possession of the object from any person, including the debtor, who had taken unlawful possession thereof. If after the discharge or extinction of the debtor’s obligation the thing was not returned, the debtor could bring the normal action (rei vindicatio) for ownership of the security, or a contractual action (actio pigneraticia).

Hypotheca was a variant on pignus, in which the creditor acquired a real right to take certain property on non-payment of a debt, ownership and possession remaining with the debtor.^[358] An advantage of the hypotheca was that practically any movable or immovable thing and even incorporeal objects (such as a claim or a usufruct) or future things (for instance, a future harvest) could serve as security.^[359]

3.3.3