Ownership

In principle, ownership (dominium or proprietas) was the most complete or exten­sive right a person could hold in respect of a corporeal thing.

3.3.1      Forms of Ownership

Roman law recognized two principal forms of ownership; namely, civil ownership (dominium ex iure Quiritium) and praetorian or bonitary ownership.^[307] The dominium ex iure Quiritium was the traditional form of ownership according to the ius civile and, as such, could be exercised only by Roman citizens or persons vested with the ius commercii. The praetorian or bonitary ownership emerged in the later republican age as a result of intervention by the praetor who, in certain cases, granted legal remedies where a person had an interest deserving of protection in relation to a thing without being the owner of such thing in accordance with the civil law.^[308] 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.

The various forms of ownership recognized in pre-classical and classical law gradually merged during the post-classical age until there existed only one form of ownership in the time of Justinian, namely, civil ownership.^{[310] [311]}

3.3.2      Acquisition of Ownership

In Roman law, ownership as a real right could be acquired in a prescribed manner. Several modes of acquisition of ownership were recognized. 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)³ In accordance with the modern approach to the acquisition of ownership, 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. This means that the thing in question, although capable of being owned, did not have an owner; or that there was a previous owner but such owner did not cooperate in the ownership acquisition process. 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.

The above two methods of classifying the modes of acquiring ownership may be reconciled. The original modes of acquisition of ownership emanated from the ius gentium, with the exception of prescription which was regarded as belonging to the ius civile; while the derived modes originated in the ius civile, with the exception of traditio which had roots in the ius gentium.

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 haberef)⁸⁹ The practical implication of this principle was that in Roman law a person who was not the owner (dominus) of a thing could not transfer ownership of that thing to anyone else.^[315]

In the sections below, the principal derivative modes of acquisition of ownership will be first explained and then followed by a discussion of usucapio as well as the other forms of original ownership acquisition.

3.3.2.1     Mancipatio

Mancipatio was an ancient and extremely formal institution of the ius civile in existence before the time of the Twelve Tables. In later times, this institution could be employed not only to transfer ownership of certain things (res mancipi) but also to establish other rights such as servitudes, to emancipate a child, to create marital power (manus) over a wife, to compose a testament (testamentum per aes et libram) and in other ways.

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 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 scales (libra) by a libripens and handed over simultaneously with the transfer of the object sold. However, the weighing and transfer of the bronze appears to have been only symbolical even in the time of the Twelve Tables. In later times mancipatio had no necessary relation with sales at all—it was a general mode of conveyance limited to certain kinds of property, whilst any sale that actually occurred was regarded as a separate transaction furnishing the requi­site cause (causa).^[317] Nevertheless, the relevant formal ceremony was retained in order to stress the seriousness of the parties' intentions.

It should be noted, finally, that the person transferring ownership by mancipatio had to provide a warranty against the eviction of the transferee from the property.

The institution of mancipatio became obsolete in the later imperial age and was an unknown legal relic in the time of Justinian.

3.3.2.2     In Iure Cessio

Like mancipatio, in iure cessio was a formal institution of the ius civile and was probably also known at the time of the Twelve Tables. This method of conveyance was used for a variety of purposes: to transfer ownership over corporeal property of every kind, whether res mancipi or res nec mancipi^[320]; to create and extinguish praedial servitudes and usufruct^[321]; and to transfer incorporeal objects other than obligations, such as an inheritance.^[322] As in the case of mancipatio, only Roman citizens or persons possessing the ius commercii could employ the in iure cessio procedure.

As a mode of ownership transfer, in iure cessio (literally ‘divesting in law') assumed the form of a fictitious trial concerning an assertion of ownership (rei vindicatio) before the praetor (in iure) for the purpose of a formal divesting of ownership in respect of an object by one person in favour of another.^[323] The person wishing to transfer ownership together with the prospective transferee appeared before the praetor^[324] whereupon the transferee, grasping the object to be transferred, formally declared it as his in accordance with the ius Quiritium.^[325] The magistrate then asked the transferor whether he disputed the claim (an contra vindicet) and if the transferor remained silent or said ‘no’, he awarded the thing to the transferee.^[326] As with manipatio, any legal cause for the owner­ship transfer was sufficient as the in iure cessio was an abstract mode with a validity independent of such cause.

Although the in iure cessio still existed in classical law, it became obsolete in post-classical times and no longer existed in Justinian’s era.

3.3.2.3     Traditio

The third and undoubtedly most important derivative mode of transferring owner­ship was delivery or traditio. Traditio originated from the ius gentium and involved the informal transfer of the actual control of a corporeal thing on the grounds of some lawful cause (iusta causa). Originally, this mode could only be employed to transfer the ownership of res nec mancipi (as already noted, a simple delivery of res mancipi did not transfer ownership, but the transferee acquired the so-called ‘bonitary ownership' which could be converted to civil law ownership through usucapio).^[328] When the formal modes of transfer disappeared together with the distinction between res mancipi and res nec mancipi in the later imperial age, the ownership of all res corporales could be conveyed by this method. Indeed, traditio was the only form of ownership transfer recognized in the law of Justinian.

It is self-evident that not every transfer of possession entailed a transfer of ownership. In the first place, both the transferor and the transferee had to have the legal capacity to effect such a transfer. This means that both persons had to be Roman citizens or possess the ius commercii. Besides the legal capacity requirements relating to age and state of mind applicable to both parties, the person transferring ownership had to be the owner himself (or act as agent for the owner) before ownership could pass (according to the principle of nemo plus iuris ad alium transferre potest quam ipse haberet). Secondly, traditio only transferred ownership when there was a lawful cause (iusta causa), i.e. a transaction in consequence of which ownership usually passed. Such lawful cause or valid ground could be, for example, a contract of purchase and sale, a loan of money, a donation, the giving of a dowry, the making of a gift and the like.^[329] Since the significant components were the intention and agreement of the parties that ownership should pass, a putative causa was deemed sufficient. For example, if the agreed purpose for the physical transfer was to fulfil a contract of purchase and sale, the ownership was passed even if the sale was legally null and void (e.g. due to an error) and therefore incapable of fulfilment.^[330]

However, the question of whether traditio was a causal or an abstract mode of property transfer is surrounded by much controversy as the extant sources are not unanimous on the question of whether a real, genuinely existing iusta causa was required before ownership could be passed by delivery.^[331] The reasonable principle was ostensibly that the relevant lawful cause had to be actually and effectively present, yet in practice exceptions were allowed for the purposes of utility and equity that accordingly meant an abstract iusta causa would suffice in many cases. In such cases, it was not deemed necessary for the lawful cause to be effectively and actually present if the parties had reached an agreement that ownership was to pass on delivery. In other words, a common intention to pass ownership was considered sufficient as the cause was merely one way of proving that intent. As an abstract mode of conveyance, traditio did not depend on any ‘cause’ external to itself but simply required a physical transfer accompanied by the intention to pass ownership.^[332]

With respect to the contract of sale as a iusta causa, in particular, Justinian stipulated that for ownership to pass the sale had to be for cash and the price had to be paid, or there had to be agreement that the sale was on credit or that security was provided for the payment of the price.^[333] Unless one of these three requirements was met, ownership of the object sold did not pass upon delivery.

As already noted, the essence of traditio was the transfer of actual control of a thing. In other words, traditio required the acquisition of possession animo et corpore (‘with soul and body’) by the transferee. The simplest form of traditio involved the physical transfer of a corporeal thing by one party to another. How­ever, complications arose when the thing to be delivered was very large and heavy or immovable. Thus, 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. Thus, several methods of constructive or fictitious delivery (traditiones fictae) developed alongside the actual physical or hand- to-hand delivery (traditio corporalis, traditio de manu in manum): the traditio longa manu, the traditio brevi manu, the constitutum possessorium and the traditio symbolica.

Traditio longa manu (‘long-handed delivery’) occurred where the actual control of the thing passed from the transferor to the transferee without any tactile contact with the thing itself.^[334] This could happen, for example, when a pile of logs or a tract of land was pointed out by one party to the other and the latter acquired the right to immediately assume possession of the relevant property.^[335] The same ramifications would occur in cases where several jars containing fruit or other goods were sold and the acquirer placed a guard over them^[336] or when the goods in a storage house were sold and the key of the storage house was given to the purchaser so that he would immediately obtain control of the goods contained therein.^[337]

Traditio brevi manu (‘short-handed delivery') occurred where the intended transferee already had physical control of the thing whose ownership was being transferred, but not as an owner. This occurred, for example, when the object in question had previously been lent or leased to the transferee and while still in his possession the object was later sold, donated or otherwise alienated to him. To avoid the inconvenience of retrieving the thing from the transferee and then handing it over to him again, it was recognized that the mere will (nuda voluntas) of the parties allowed the ownership of the thing to immediately pass from one to the other.^[338]

Constitutum possessorium was the converse of traditio brevi manu.^[339] This method pertained to the case where the person wishing to alienate a thing remained in physical control of the thing after the alienation because of a supplementary agreement with the new owner. In such a case it was conceded that possession and therefore ownership of the thing passed, even though there had been no physical transfer at all. This occurred, for example, when the person who sold a tract of land remained in possession of it because he had agreed with the buyer that he would continue in occupation as a tenant. Once again, the bare will (nuda voluntas) of the parties was sufficient to transfer ownership.^[340]

Finally, symbolic delivery (traditio symbolica) occurred where a symbol of the thing whose ownership was being transferred rather than the thing itself was delivered. This happened, for example, when an agreement for the transfer of ownership over an object was recorded in a document that was later handed over to the transferee as a symbol of the object he acquired. In the later imperial age, the tendency to reduce juristic acts to writing became widespread and by the time of Justinian documents were generally adopted in legal practice as a means of owner­ship transfer. By that time, the agreement between the parties was regarded as the essence of a conveyance; since such agreement was usually embodied in a document, the transfer of ownership became identified with the delivery of the relevant document.^[341]

3.3.2.4     Usucapio

In Roman law, usucapio was undoubtedly the most important original mode of acquisition of ownership. In original form, this mode derived from the ius civile and was probably already in existence at the time of the Twelve Tables. The essence of usucapio was that the possession and use of a thing belonging to another person (not a res nullius) for a certain, prescribed period converted the possessor into the owner of that thing.^[342] As in modern law, one of the principal purposes of usucapio was to establish legal certainty by removing doubt in respect of the right of ownership over a thing after the appropriate period. Usucapio also facilitated the proof of such right, since the person who claimed to be the owner of the thing only had to prove that he had been in possession for the prescribed period instead of having to establish the ownership of his predecessors.^[343] As commentators remark, usucapio was a necessary complement to the principle that no one could transfer more rights to another than he himself had (nemo plus iuris ad alium transferre potest quam ipse habet). Although this principle meant that a person who received an object from a non-owner could not himself become owner thereof, usucapio presented the possibility for such a person to acquire legal ownership of the object in question if certain requirements were met. Furthermore, as previously observed, in pre- classical and classical law usucapio was relied upon to elevate the praetorian or bonitary owner (i.e. the person who acquired a res mancipi by means of iradilio) to the status of civil law owner (dominus ex iure Quiritium).

The acquisition of ownership by usucapio first presupposed that the object in question was susceptible to usucapio. This generally meant that the object had to be capable of being the subject of transactions between Roman citizens (res in commercio), as only such things were open to private ownership. Thus, the objects excluded from usucapio encompassed res extra nostrum patrimonium, such as res sacrae, religiosae and sanctae,^[344] as well as land in the provinces that was techni­cally owned by the state.^[345] Furthermore, the object in question could be declared inalienable by a rule of law. The two most important instances of such inalienable things were stolen objects (res furtivae)⁷ and things seized by force.^{[346] [347]} Such things were construed as ‘tainted’ and only susceptible to usucapio if the taint (vitium) was expunged by the return of the thing to its rightful owner.^[348] In reference to the statement that stolen and forcibly taken things could not be legally acquired by usucapio, it should be noted this does not simply mean that the thief or violent dispossessor was incapable of acquiring ownership by usucapio: these were pre­cluded by the fact that their possession was not in good faith. It means, rather, that even a person who purchased the thing from them in good faith or received it on some other lawful ground was incapable of acquiring ownership by usucapio. Besides the above-mentioned things, excluded from usucapio were also dotal immovables, the immovable property of pupilli and minores^[349] and property belonging to the state treasury (fiscus).^[350] The second requirement for the acquisition of ownership by usucapio was possession: the person who was to acquire ownership had to retain physical control of the property in question for an uninterrupted and prescribed period.^[351] Where there had been an interruption (usurpatio), usucapio failed and the required period of possession started all over again if possession was subsequently restored.^[352] However, under certain circumstances it was possible that the periods of possession by two or more successive holders might be added together to the benefit of the last one (accessio possessionum or temporum). This occurred, for example, where the person who was to acquire ownership by usucapio died before the lapse of the requisite period. In such a case, the possession of his heir was regarded as a continuation of that of the deceased.^[353]

As already noted, the person who was to acquire ownership by usucapio had to remain in possession for the legally prescribed period of time. According to the Law of the Twelve Tables, that period was 2 years in respect of immovable property and 1 year in respect of other things. Justinian extended this period for movables to 3 years and for immovables to 10 years where the original owner resided in the same area (inter praesentes) and to 20 years where the parties lived in different districts (inter absentes)?⁹

Furthermore, the acquisition of ownership by usucapio presupposed the exis­tence of a just cause (iusta causa) or a just title (iustus titulus). ‘Just cause' in this context means an antecedent event or transaction by virtue of which the possessor would have become owner of the property under normal circumstances.^{[354] [355]} Examples of such cause or title included purchase and sale, gift, dowry, legacy, discharge of a debt, inheritance and the like. In contrast to the case of traditio, an erroneous belief of the acquirer that there was a just cause did not suffice for usucapio.^[356] In other words, the iusta causa had to be real but this rule was flexible in permitting exceptions in certain circumstances.^[357]

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 iusta causa) made him owner of the property.^[358] This generally implied a belief based on a mistake of fact, not of law,^[359] that the transferor was the owner or legally competent to alienate the property. In other words, the criterion elaborated for bona fides was that the acquirer had to believe in the lawfulness of his acquisition. But where a person acquired a res mancipi by traditio (rather than mancipatio or in iure cessio) from the owner, it could hardly be asserted that the acquirer did not know that he had not become the owner and yet he could acquire ownership by usucapio. It is important to note that in such a case, analogous to that of the acquirer of property from a non­owner, there was a rebuttable presumption that good faith was present (bona fides praesumitur): the person disputing usucapio had the onus to establish bad faith

(mala fides). The latter would have to prove not simply that the possessor was in bad faith at the time of the action, but that he was in bad faith at the time of acquiring possession. 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.^[360]

name=bookmark1612>3.3.2.5     Longi Temporis Praescriptio

As an institution of the ius civile, usucapio could be utilized only by Roman citizens or foreigners (peregrini) granted the ius commercii. Movable objects in the posses­sion of a foreigner as well as land in the provinces, whether it was in the possession of a Roman citizen or a foreigner,^[361] were initially not capable of being acquired by usucapio. In response to this problem, a new institution originating in the Eastern provinces was introduced in the late second century ad: the praescriptio longi temporis (or longae possessionis).^[362] Initially this institution assumed the form of a defence employed by the possessor of provincial land against the claim of the person originally entitled to the land. This defence was subsequently extended to cases pertaining to movables in the possession of foreigners and became generally appli­cable after ad 212. For such a defence to succeed, it was required that the possessor had held the land or object for an uninterrupted period of 10 years when both parties lived in the same district (inter praesentes) or 20 years when they domiciled in different localities (inter absentes)^[363] Moreover, the possession of the defendant had to be based on a lawful cause (iusta causa) and acquired in good faith (bona fide).

Although the longi temporis praescriptio was originally a form of extinctive prescription or limitation (the true owner of the land or object forfeited his right by not exercising it for a certain period of time), by the time of Justinian’s reign it had evolved (like usucapio) into a form of acquisitive prescription. In Justinian’s era the institutions of usucapio and longi temporis praescriptio were fused into one, following the elimination of the distinction between land in Italy and in the provinces as well as between possession by a Roman citizen and possession by a foreigner.^[364]

3.3.2.6     Longissimi Temporis Praescriptio

In the fourth century ad, a further prescriptive institution known as longissimi temporis praescriptio was developed.^[365] This innovation assumed the form of a defence that could be employed by a person who had been in possession of any kind of property belonging to another for a very long time (originally forty and eventu­ally 30 years) against the claim of the true owner for its recovery. The possessor could rely on such a defence even if there had not been compliance with the requirements of usucapio.^[366]

Justinian refined the matter a step further and rendered this form of prescription acquisitive by enacting that if the possessor had acquired the property in good faith, even if without a lawful title, he became the owner thereof after a period of 30 years. This rule applied even if the object in question had been at some time stolen, but was inoperative if the possession of the property had been acquired from the original owner by violence (res vi possessa).^[367]

3.3.2.7     Occupatio

A form of original acquisition of ownership derived from the ius gentium was occupatio: 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 the enemy; an island arising in the sea; things thrown away by a former owner; and a buried treasure.

Firstly, wild animals, birds, bees and fish became the property of the person who captured them for as long as they remained under his actual control.^[368] It made no difference on whose land the animal was captured. If the captured animal later escaped, ownership over it was lost at that moment and the animal once again became a res nullius.^[369] It is important to note that occupatio was applicable only to wild animals and never to domestic animals or animals by nature tame, such as sheep, chickens and geese. If a domestic or tame animal wandered away or took flight and ‘went wild', the dispossessed owner still retained ownership and thus anyone who seized the creature with the intention of becoming owner committed theft.^[370] Migratory animals or animals that had been tamed but had the habit of going away and returning periodically remained the property of the person who had tamed them as long as they retained the habit of returning and had the ‘intention to return' (animus revertendi)^[371]

In principle, things seized from the enemy in wartime became the property of the Roman state. In practice, however, only land and other immovables were trans­ferred to the state while movables became the property of the person who captured them or the commanding officers apportioned them among the soldiers.^[372]

An island rising in the sea (insula in mari nata) was considered a res nullius and therefore became the property of the first person that took possession thereof.^[373]

A further example of res nullius were abandoned things, or things which an owner threw away or discarded with the intention of relinquishing his ownership (res derelictae) Such objects became the property of the first person taking possession thereof with the intention of becoming their owner.^[374] The res derelictae should be distinguished from things that had been lost without the owner intending to relinquish ownership (even though he had lost physical control of them). The latter things remained the property of the original owner and the act of another person assuming possession thereof could be regarded as theft.^[375] The same applied to objects that had been voluntarily abandoned by an owner without the intention of loss of ownership, such as objects thrown overboard in a storm with the purpose of saving the ship.^[376]

The final illustration pertains to a 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^[377] and thus was considered a res nullius and susceptible to occupatio. 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.^[378] 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. Where the treasure was found on public property the finder again retained a half portion whilst the other half was transferred to the fiscus.^[379]

3.3.2.8     Acquisition of Fruits

A further original form of acquisition of ownership derived from the ius gentium was the acquisition of fruits (acquisitio fructuum). This mode of ownership acqui­sition related to natural produce (fructus naturales), such as the fruits emanating from trees and plants as well as the offspring of animals.^[380] As previously observed, natural fruits were divided into fruits not yet separated from the principal thing that produced them (fructus pendentes); fruits separated from the principal thing (fructus separati); and fruits separated and gathered (fructus percepti). While still attached to the main object that produced them, fruits belonged to the owner of that object. However, when fruits were separated from the main object and thus became separate things the question of ownership over them arose.

The general rule was that the owner of the principal object that produced the fruits immediately became owner of the separated fruits.^[381] There were cases, however, where the fruits were acquired by a person other than the owner of the main object. The usufructuary and a lessee or tenant acquired ownership of the fruits by gathering and actually taking possession of them (perceptio fructum).^[382] On the other hand, the emphyteuta (a tenant by emphyteusis)^[383] and the bona fide possessor became owners of fruits by mere separation (separatio fructuum).^[384]

3.3.2.9     Accessio

As an original mode of acquiring ownership, accessio emerged from the ius gentium but many of the detailed rules governing its operation were purely Roman creations.^[385] 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. Such a situation may have been effected by natural processes or by human agency, or by a combination of both. This invoked two questions: who should become the owner of the new composite object, and how was the ex-owner of a vanished thing to be compensated?

The basic principle was that the owner of the principal object also became owner of the composite thing; furthermore, the owner of the minor object had to be reimbursed for his loss of ownership. However, formulating a clear general test for distinguishing between the principal thing and the accessory has proved very difficult as everything is contingent on what has been described by philosophers as the ‘elusive notion of identity'. The only simple test the authorities offer revolves around the criterion of value, but this seems inadequate as the principal object is not necessarily the more valuable object of the two. It is thus unsurprising that there were numerous exceptions to the general principles governing accessio and, in the course of time, a relatively complex system of rules was developed to meet the requirements of different cases. The same casuistry can be observed with respect to the issue of compensation of the former owner of the minor object. In the discussion below, attention is devoted to the three principal forms of accessio: the accession of immovables to immovables; the accession of movables to immovables; and, finally, the accession of movables to movables.

With respect to the merging of immovables with immovables, four forms all involving riparian owners could be distinguished: alluvio; avulsio; insula nata in flumine; and alveus derelictus.

The term alluvio was used to describe the accretion of land to the boundaries of riparian owners by way of silting caused by the flow of water in a river. This occurred when soil from the land of one riparian owner was gradually and imper­ceptibly borne by the current of a river and washed against the land of another riparian owner. The latter was then regarded as having obtained ownership of the silt deposits that had come to rest on his property through accessio.^[386] There was no question of any redress or compensation payments for the owner of the soil that had been lost in this way.

Avulsiolang=EN-US> occurred when a sizeable piece of land was torn away by the torrent of a river from the land of one owner and deposited on the land of another. In such a case, the land that had been torn away remained the property of the original owner. However, when the two pieces of land were so joined that trees or plants in the torn off ground established roots in the land to which it had acceded, the riparian owner acquired ownership of the detached part that had been joined to his by way of accessio.^[387]

The question of ownership of an island that arose in a river (insula nata in flumine) has attracted much attention. Although the relevant rules are rather unclear, it appears that if the island was wholly on one side of the river it became the property of the riparian owner on that side. If there were more than one owner, the island was divided by drawing vertical lines from the boundaries of each property to the island. If, on the other hand, the island was not wholly on one side it became the property of the riparian owners on either side of the island. According to modern Roman law scholars, this implies that an imaginary line was drawn along the middle of the river and further lines were extended from such middle line to the boundaries of the riparian owners' properties and in this way the share that each owner had in the island was determined.^[388]

Alveus derelictus occurred when a river changed its course and began flowing along another bed. In such a case, the previous riverbed that had dried up was shared by the former riparian owners on a pro rata basis in the same way as in the case of the insula nata in flumine, while the new bed became a res publica like the river itself. If at a later stage the river returned to its original bed and the second bed reappeared, the latter did not revert to its previous owners but was divided according to the same method employed for the first riverbed (i.e., according to the rule that applied to alveus derelictus in general).^[389] It should be noted, finally, that in the cases of both insula nata in flumine and alveus derelictus no question of compensation arose.

With respect to the merging of movable things with other movable things, the overall picture is relatively more complicated because in these cases the distinction between principal thing and accessory is difficult or impossible to draw. Generally,

the solutions offered were devised casuistically and based on equity or some similar notion rather than on hard and fast legal rules.

Confusio offers a typical example of accession of movables to movables. It occurred when liquid materials (e.g. wine, oil, honey, or molten metals) belonging to different owners were mixed together—a process that may have happened with or without the owners' consent. If the resulting mixture was inseparable, it became common property and the former owners became joint owners in proportion to their individual ownership prior to the confusio. In such a case, each joint owner could claim a division by way of the actio communi dividundo.^XX5 If, on the other hand, the mixture was separable (e.g. where molten metals were mixed) there was no joint ownership but each owner retained ownership in respect of his portion of the mixture.^{[390] [391]} In such a case, each owner could demand a separation of the mixture by instituting the actio ad exhibendum, and after the separation had taken place, claim his property by way of the rei vindicatio.

Closely related to confusio was commixtio^[392]: the mixing of solids, such as grain or corn, that belonged to different owners. If the mixing occurred with the consent of the individual owners, the result was again joint ownership irrespective of whether the components of the mixture were separable. On the other hand, if the mixing had occurred without the owners' consent then each owner retained owner­ship in respect of his portion of the mixture. This approach to the matter posed no problems where the components could be easily separated, such as in cases where livestock had been mixed; difficulties arose, however, in cases such as those involving grain where it was not feasible to separate the individual grains so that each owner would receive exactly those grains he had owned. In the latter case, the Romans solved the problem by granting the owner who was not in possession of the mixture an actio in rem (known as actio in rem pro modo frumenti) for the recovery of his appropriate portion. Since it was impossible for a claimant to be given his own grain, the judge divided the mixture and allocated a share to each owner at his discretion by taking into account the quality of the grain belonging to each owner before the mixing occurred.^{New Roman",serif;color:black'>[393]}

Textura was another instance of accessio whereby the ownership of an object passed from one person to another.^[394] It occurred when a person's property was woven or incorporated into that of another such as when gold thread belonging to one owner was stitched or woven into the garment of another. In such a case, the owner of the major or dominant object (in our example, the garment) became owner of the minor object (in our case, the thread) even if the latter was more valuable than the former. However, the previous owner had an array of remedies at his disposal depending on the circumstances of the particular case. Thus, in our example, if the gold thread had been stolen, the former owner could institute the actio furti or condictio furtiva?² If it was still feasible to remove the thread from the cloth, the owner of the thread could institute the actio ad exhibendum to have the thread detached; and, after separation, initiate the rei vindicatio to reclaim his property.^{[395] [396]} If the two objects could not be separated, the praetor could grant the former owner of the thread an actio in factum or actio utilis by means of which he could claim the value of the thread.^[397] Furthermore, if the former owner of the thread was himself in possession of the final product (i.e. the cloth together with the interwoven thread), he could raise the exceptio doli as a defence against the rei vindicatio of the owner of that product. If such a defence was successful, the owner of the final product was compelled to pay compensa­tion to the former owner of the thread for his loss before he was able to claim the product.^[398]

Where an object belonging to one person was attached by means of welding (ferruminatio) to that of another so that the two objects became inseparable, the owner of the principal object also became owner of the accessory. Where the two objects had, however, been soldered together (plumbatura) they were generally considered separable.^[399] In such a case each owner retained his ownership and could employ the actio ad exhibendum to effect separation.

Scriptura offers another example of accession of movables to movables. When a person wrote on someone else's parchment or paper, the letters (and naturally the thoughts they expressed) acceded to the material on which they were written. In such a case, the paper was considered the principal element and thus the owner of the paper became owner of the whole (even if the letters were crafted of gold). However, the writer had several remedies at his disposal. Thus, if the writer was in possession of the document and the owner of the paper wished to claim his property by way of the rei vindicatio, the writer could rebut the owner's claim by raising the exceptio doli until the latter had reimbursed him for his loss (i.e. the writing). If the owner of the paper was in possession of the document, the praetor could grant the writer an actio in factum or an actio utilis to claim compensation.^[400]

Pictura pertained to the case where a person executed a painting on a canvas or tablet belonging to another, and this mode of accession resembled scriptura in many respects but the applicable solution was different. In this case, it was the painting rather than the canvas or tablet that was considered to be the principal element and thus the painter also became owner of the material embodying the painting.^[401] If the painting was in the possession of the former owner of the canvas or other material, the painter could claim it by way of the rei vindicatio. The previous owner of the material could rebut such a claim by raising the exceptio doli until he was compensated for the value of his material. Furthermore, if the painting was in the possession of the artist, the former owner of the material could be granted an actio utilis by the praetor to claim the whole picture (almost in the same way as in the case of the rei vindicatio). However, otherwise than in the case of scriptura, the actio utilis of the former owner of the material could be defended by means of an exceptio doli if no compensation had been paid for the painting. Such a defence could be relied upon, however, only if the painter had made use of the relevant material in good faith style='font-style:italic'>(bonafide).^[402]

When a movable thing was joined to an immovable one, the latter was without exception regarded as the dominant thing. In this instance, the ownership of the immovable was extended over the movable thing or accessory. This type of accessio assumed different forms, however, and the relevant rules differed depending on the circumstances of the case.

Inaedificatio came to the fore when material belonging to one person was used to construct a building on another person's land. The general rule in these cases was that the owner of the land also became owner of the building material in accordance with the principle superficies solo cedit (‘whatever is attached to the land forms part of it').^[403] It is important to note, however, that a distinction was drawn between the case where a person built on his land with material belonging to another and the case where a person built on the land of another with his own material. In the former case, the general rule mentioned above applied: the owner of the land also became owner of the building material. Nevertheless, under the Law of the Twelve Tables, the former owner of the material could claim restora­tion of his material by means of the rei vindicatio if the building was later demolished. One might say that, in theory, the ex-owner's right of ownership was suspended so long as the building was standing and was revived in the event it was demolished. While the building remained standing, the previous owner of the material was precluded from instituting the actio ad exhibendum to have the material detached from the building and, obviously, could not employ the rei vindicatio either. On the other hand, the Law of the Twelve Tables accorded him the actio de tigno iuncto^[404]: a personal action by means of which he could claim double the value of the material if he was not prepared to wait until the building had been demolished.^[405] In the case where a person had built on another's land with his own material, the legal position was somewhat hazier. In principle, the general rule prevailed that the owner of the ground became owner of the material but the nature of the relevant remedies varied according to the good or bad faith of the builder. If the builder had acted in bad faith (mala fide)—that is, if he was aware of the fact that he was building on another's land and that he was not entitled to do so—the rule was that he could not claim compensation. This approach was based on the assumption that the mala fide builder had voluntarily abandoned his material and donated it to the owner of the ground.^[406] However, this apparently was a controversial point as there are texts that grant the mala fide builder the right to remove his material (ius tollendi) after he has left the ground^[407] or even an action to claim from the landowner the amount by which the latter was unjustifi­ably enriched.^[408] If the builder had acted in good faith (bona fide), he could wait until the building was demolished and then claim his material by means of the rei vindicatio. If he was not prepared to wait until the building was demolished, he had a ius tollendi that imparted a right to remove his material if he could do so without harm to the site, as well as an enrichment action at his disposal (similar to that available to the mala fide builder).^[409] In the usual case where the bona fide builder was in possession of the land, he could exercise a right of retention by refusing to evacuate it before he was reimbursed to the value of his material and labour costs (including the wages of the labourers used during the course of the building). The possessor could exercise this right by raising the exceptio doli as a defence against the rei vindicatio invoked by the owner of the land to claim the ground (and the building).^[410] If the building was torn down while the builder was in possession of the ground, the ownership of his material was simply restored to him.^[411]

There were two further instances of accessio involving the joining of movables to immovables, namely implantatio and satio. The former occurred when one person planted a tree or plant in the land of another,^{New Roman",serif;color:black'>[412]} while the latter transpired when the seeds of one person were sown in another person's land. The general rule that applied in such cases was that the tree, plant or seed became the property of the landowner from the moment that it took root or began to grow. If the plant or tree was planted close to a boundary and its roots penetrated into two neighbouring landowners' grounds, the plant or tree became the joint property of the owners of the two plots of land. If the former owner of the plant, tree or seed was in possession of the land, he could rebut the rei vindicatio of the owner of the land by raising the exceptio doli until he was reimbursed for his loss.^[413] If the former owner had lost possession, the praetor could grant him an actio utilis to claim compensation from the landowner.^[414]

3.3.2.10     Specificatio

The term specificatio^[415] refers to the process of creating orbringing into existence a new object (nova species) out of existing material, such as wine from grapes, a statue from metal, a boat from timber and a garment from wool. If the creator of the new object was not the owner in whole or in part of the material used, the question of ownership of the object came to the fore.

If the creation of the new thing was preceded by an agreement between the maker and the owner of the material, there was no difficulty in establishing ownership: either the agreement had resolved the question of ownership or, if it did not, the new object would become the joint property of the two parties. However, what if the creator of the new thing had acted without the consent of the owner of the material and the parties could not agree about the ownership of the thing? The two schools of jurisprudence of the classical era, the Sabinians and the Proculians, formulated different answers to this question. The Sabinians declared the opinion that the owner of the material should also become owner of the new object or where there were two or more owners, the latter should own the object jointly and in proportion to their contribution. By contrast, the Proculians held the view that the maker acquired ownership of the thing he had created.^[416] Justinian adopted a middle course and ruled that if the new product could be reduced to the material from which it had been created (for example, a golden statuette could be melted down to the original lump of gold), the owner of the material also became owner of the new object; if this could not be achieved (for example, wine could no longer be transformed into grapes), the maker became the owner. Where a new object was created partially out of material belonging to another person, the maker became owner of the object since he had not only made the thing but had also contributed part of the material. Although this case is classified as specificatio, it was really a form of accessio as the creator acquired ownership of an object that incorporated some­one else's material.^[417]

The extant authorities are not very clear on the question of what legal remedies could be available to the party who suffered loss as a result of specificatio. It seems likely, however, that such party could institute an actio utilis or even an enrichment action against the owner of the new object.^[418]

3.3.3      Protection of Ownership

Owners could employ a variety of legal remedies to protect their rights, depending on the way in which ownership was infringed. In the illustrative case of theft, the owner could institute the rei vindicatio to reclaim his property; he could also seek to exact a penalty from the thief by means of the actio furti and, if recovery of the stolen property was impossible, could institute the condictio furtiva to obtain compensation for the loss he had suffered. Further­more, the owner of immovable property had an array of actions and interdicts at his disposal in cases of nuisance; the actio negatoria against anyone who claimed a servitude or usufruct over his property; and, in general, any owner could apply the possessory interdicts.

The most important legal remedies an owner could employ, however, were the rei vindicatio comprised of an action used to defend civil or ‘quiritary’ ownership of a thing (movable or immovable) and to recover possession of it from third parties; and the actio ad exhibendum, an action usually employed before an owner initiated the rei vindicatio.

3.3.3.1     Rei Vindicatio

The rei vindicatio was a real action (actio in rem) derived from the ius civile that served to protect the civil law owner (dominus ex iure Quiritium). By means of this action, the owner reclaimed possession of his property from any person in posses­sion of it without holding a right to such possession, irrespective of whether the possessor was bona fide or mala fide.'^[419] Such action was directed at the recovery of the property itself and not at the person of the possessor thereof.

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. The burden fell on the plaintiff to prove that he was the owner of the property in question. In practice, this meant the plaintiff had to show that he had acquired the property by an original form of acquisition or that his predecessor had held a lawful title to such property. If he succeeded, the judge condemned the defendant to restore possession of the property to the owner or, if the thing itself had been lost or destroyed, to pay a sum of money proportionate to the value of the thing. In assessing the amount in question, the judge had to take into consideration the so-called causa rei that theoretically included everything the plaintiff would have acquired if the object had been returned to him at the moment of the litis contestatio.^[420] More specifically, the causa rei encompassed the fruits and other proceeds of the thing as well as damages and expenses.^[421] The extent of the claim also depended on the possessor’s good or bad faith. The bona fide possessor was liable for the fruits that were plucked and still in existence (fructus extantes) before the litis contestatio as well for all fruits (including those that had been consumed or had not been gathered) after the litis contestatio. Furthermore, he was liable for intentional damage to the property before the litis contestatio as well as intentional and negligent damage to it after this phase of the civil proceedings. On the other hand, the mala fide possessor was liable for all fruits along with all intentional and negligent damage caused to the thing before or after the litis contestatio.^[422] However, both the bona fide and the mala fide possessor were entitled to compensation if they had incurred necessary or, under certain circumstances, useful expenses (impensae necessariae, impensae utiles) in respect of the property as elaborated by the principle that nobody should be unjustifiably enriched at someone else's expense.^[423] Furthermore, both had the right to remove and take away any improvements effected by them on the property in question (ius tollendi), provided that they could exercise this right without causing harm and the removal was not totally useless.^[424]

Under the law of Justinian, the rei vindicatio could also be instituted against the so-called ‘fictitious possessors' (ficti possessores). Such possessors were persons who were no longer in possession of the thing because they had rid themselves of it fraudulently with the purpose of preventing the institution of the rei vindicatio against them. The term ficti possessores also denoted persons who were not in possession of the object but purported to be the possessors thereof and hence allowed another to launch an action against them with the purpose, for example, of enabling the true possessor to continue a prescriptive period without interruption. The fictitious possessors were sentenced to pay a sum of money as compensation to the deceived plaintiff.^[425]

3.3.3.2     Actio Ad Exhibendum

As previously noted, the rei vindicatio was a real action by means of which the owner of a thing demanded that possession of his property should be restored to him. Before he could institute this action, however, the owner had to ensure that the object in dispute could be brought before the court and this requirement often meant he had to compel the person in possession of the object to produce it. This task was necessary when the possessor refused to cooperate or denied he had possession of the object in question despite evidence that suggested otherwise. Such a case would prompt a resort to the actio ad exhibendum as a prerequisite for the rei vindicatio.^[426]

The actio ad exhibendum was a personal action^[427] derived from the ius civile 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. As previously indicated, a specific application of this action was connected with accessio when a person's object became attached to that of another in such a manner that a new composite thing was formed. Through the actio ad exhibendum the plaintiff sought to compel the person in possession of the compos­ite thing to detach and produce his object, so that the rei vindicatio could be instituted afterwards for the recovery of the separated object.^[428] Obviously this action presupposed that the separation could be accomplished without damage to the object and while it retained its original identity. Even in cases where the object in question no longer existed (e.g., if it was destroyed or consumed by the defen­dant) the actio ad exhibendum was available to the plaintiff for pursuing damages. A further application of the action was against a person who had rid himself of a thing in bad faith (mala fide) with the purpose of avoiding the rei vindicatio instigated against him by another person.^[429]

In an actio ad exhibendum the plaintiff had to prove that the defendant was in possession of the object in question and could produce it. If he succeeded in establishing this proof and the defendant refused to produce the object, the latter was sentenced to pay an amount of money to compensate for the loss incurred by the plaintiff.^[430] This amount included the value of the fruits that had meanwhile been produced by the thing.^[431]

3.3.3.3     Actio Publiciana

The actio Publiciana was an actio in rem granted by the praetor to the person who acquired a res mancipi in an informal manner by way of traditio rather than mancipatio or in iure cessio.^[432] As previously observed, in such a case the acquirer did not become dominus ex iure Quiritium of the property but was placed by the praetor in the factual position of a civil law owner. The property was then regarded as in bonis and the acquirer as a bonitary or praetorian owner who could become a true owner by means of usucapio if he remained in possession of the property for a prescribed period of time. The actio Publiciana accorded the bonitary owner virtually the same protection imparted by the rei vindicatio to the dominus ex iure Quiritium. The bonitary owner who lost possession before the period of usucapio was completed could utilize this action to recover possession of the property from whoever may have held it without a lawful title, irrespective of whether such person was a bona fide possessor. The actio Publiciana was an actio fictitia as it was based on the fiction that the bonitary owner had already become a true civil law owner through the process of usucapio.^[433] For the rest, the action was subject to the same rules as those that applied when the rei vindicatio was instituted.href="#_ftn434" name="_ftnref434" title="">^[434]

In the era of Justinian’s reign, the distinction between res mancipi and res nec mancipi as well as the attached concept of bonitary or praetorian ownership vanished and therefore the above application of the actio Publiciana became obsolete. However, Justinian introduced a new application of this action. This innovation pertained to the case where a person received bona fide and ex iusta causa a thing from a non-dominus and was in the process of acquiring ownership of such thing by means of usucapio. Such a person could institute the actio Publiciana against any person who had assumed possession of the thing without having a lawful title. It should be noted, however, that such action could not be employed against the dominus ex iure Quiritium.^[435]

3.3.3.4     Actio Negatoria

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 an order of court 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.^[436]

3.3.4      Limitations on Ownership

Even though ownership was the most extensive of all real rights, it could still be limited in various ways: by public law, by the rights of neighbours and by the owner's own voluntary decision to waive some of his rights.

As early as the archaic period, the owner's right of disposal with respect to his property was restricted by various prohibitions of public law.^[437] The criterion in these instances was the public interest, and legislation limiting the power of the owner in the interests of public health and safety did feature in Roman law. At the same time, generally established principles of a moral or ethical nature prompted the censors (censores) to keep a watchful eye on breaches of the public interest connected with the abuse of ownership rights.^[438]

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.

Finally, the power of an owner over his property was often limited by various rules of private law; the most important of which pertained to the so-called ‘law of neighbours'.

In principle, the owner of land had absolute power over his property and could do as he pleased with the surface of such land, the space above it and the earth below. As the Roman population increased and neighbours dwelled closer to each other, a series of rights and reciprocal duties in respect of the owners of adjacent land developed for the purpose of preventing unreasonable inconvenience to and possible conflict among them.

There was, for instance, an ancient ruling concerning the branches of trees protruding over the boundary of a neighbour's property. The Law of the Twelve Tables provided that the landowner whose property was affected could request a pruning of the overhanging branches to a height of fifteen feet. If this request was not complied with, he could employ the interdictum de arboribus caedendis¹⁴ 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.^{New Roman",serif;color:black;font-weight:bold'>[439] [440]}

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.^{[441] [442]}

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.¹⁶⁶ If the owner refused to do so, the praetor could grant a missio in possessionem that placed the neighbour in posses­sion of the dangerous building. If the owner remained recalcitrant, a second decree could ensue declaring the neighbour to be bonitary or beneficial owner of the building (and thus in the process of acquiring true ownership by usucapio).^[443]

Where the owner of a property commenced construction work on his property or an excavation in such a manner that his neighbour or the beneficiary of a servitude feared possible damage to his own property interests, the latter had the right to demand that the owner cease the work (operis novi nuntiatio) or provide security against possible future damage by way of the cautio damni infecti. If the owner failed to do so, the praetor could grant the interdictum demolitorium for the demolition of the work constructed.^[444]

Closely connected with the above case was the situation where a person forcibly or clandestinely (vi aut clam) erected a structure or did some work on land (such as cutting trees, digging, demolition of an existing building and the like). If such structure or work prejudiced a neighbour, the interdictum quod vi aut clam could be instituted against the builder to compel him to restore the status quo.^[445]

An owner of land that had no outlet to a public road and who, therefore, could not reach his property without passing through the land of a neighbour, could claim a way of necessity (via necessitatis) over the latter's property.^[446]

Smoke or the natural flow of water from a neighbouring property had to be tolerated as long as it remained within reasonable limits. If these limits were exceeded, the interdictum uti possidetis could be granted to the person who had been disturbed in the possession of his property.^[447]

Furthermore, a neighbour was required to allow a wall belonging to an adjacent property to protrude half a foot over his property.^{[448] [449]}

It should be noted, finally, that a dispute regarding the boundary between neighbouring properties could entail one of the owners instituting the actio finium regundorum against the other for the purpose of having the boundary determined anew. In such a case, the judge had the power to transfer a portion of land from one party to the other into full ownership (adiudicatio).

3.3.5      Joint Ownership

Joint ownership or co-ownership, denoting ownership of the same object by two or more persons simultaneously, was recognized in Roman law from a very early period.

size=2 color=black face="Times New Roman">The earliest form of joint ownership was the consortium ercto non cito comprised of a community of sui heredes'¹¹⁴ who, after the death of their paterfamilias, became joint owners of his property when such property remained undivided. Each of the co-owners had the same right of disposal in respect of the entire estate and could demand the division of the common property by means of the actio familiae erciscundae. In the early classical period, this form of joint ownership became obsolete and finally disappeared from the legal scene.

Another form of joint ownership still in existence during Justinian's reign was the communio pro indiviso or, as it was later called, condominium.^[450] It arose when two or more individuals purchased or acquired through inheritance or legacy the same property in common. This form of co-ownership was often voluntarily entered into by partners engaged in a joint business venture.^[451] In this case each joint owner had a share in the common property and could use, alienate, pledge or otherwise burden his share as he saw fit. Moreover, in proportion to his share, he had full enjoyment of the common property. However, he did not have the right of disposal in respect of the property as a whole because such disposal required an agreement among all the co-owners. At the same time, each joint owner had the ius prohibendi: the power to prohibit other co-owners from using the common property in an extraordinary and hence unacceptable manner.^[452] As this suggests, the parties had to reach an agreement on the use or exploitation of the property or when such consensus was elusive they had to terminate the joint ownership.

If the co-owners decided to terminate the joint ownership and divide the common property but could not reach agreement on the appropriate method for this division, any of them could institute one of the actions available in such cases: the actio familiae erciscundae for the division of a joint inheritance; and the actio communi dividundo for the division of other joint property. If the property in question was divisible, the judge had the duty to order a division according to the share that each owner had in the property and to adjudicate to each a portion thereof (adiudicatio). On the other hand, where the joint property was indivisible the judge could award the property to one of the co-owners and at the same time order him to pay a sum of money as compensation to the others. Alternatively, he could rule that the property be sold and the proceeds from such sale be divided among the joint owners.^[453]

3.4