Property

Traditionally, most textbooks on the subject start with the divisions of property found in Roman legal texts (chiefly in the Institutes of Gaius) since categorisation was the logical starting point in the Roman legal mind for any discussion of property.

Inst.Gai.II.1.... Now we turn to things. They are either regarded as private property (in patrimonio) or outside the sphere of private property (extra patrimonium).

Inst.Gai.IL2. The primary division is twofold: things are subject to religious law (divini iuris) or secular law (humani iuris)... 3 Sacred things (res sacrae) are those consecrated to the gods above, religious things (res religiosae) are dedicated to the spirits of the dead (Manes),... 6 We can choose to make our own land religious by burying a corpse there, provided the deceased's funeral is our business.... 8 Again sanctified things (res sanctae) like walls and gates are in a sense subject to religious law. 9 A thing subject to religious law belongs to nobody (nulh'us in bonis), whereas

something subject to secular law often belongs to someone, though it may belong to nobody.... 10 Things subject to secular law are either public or private. 11 Public things are held to belong to nobody as they are the property of the community (res universitatis). Private things belong to individuals.

Inst.Gai.II.14a. There is another division of things: some are mancipi and others are nec mancipi. Res mancipi are land and houses on Italian soil: Slaves; animals normally trained to pull or carry things like oxen, horses, mules and asses and also rustic praedial servitudes. Urban praedial servitudes are res nec mancipi. 15 Stipendiary and tributary lands [i.e. provincial land] are not capable of mancipation. [translation: Handouts]

Notice that there are at least three types of division employed in this these texts: (1) private property/not private property; (2) subject to human law/subject to divine law; (3) res mancipi and res nec mancipi.

What was the motivation for this distinction? The significance lay in its effect on the transfer of ownership. Gaius explains it as follows:

Inst.Gai.II.18. Now there is an important difference between res mancipi and res nec mancipi 19 Res nec mancipi become fully the property of someone else (pleno iure) by delivery alone, as long as they are corporeal and so can be delivered. 29 So if I deliver clothes or gold or silver to you, whether because of a sale or gift or on any other basis, it becomes yours immediately, as long as I am its owner.... 22 Res mancipi on the other hand are transferred to someone else by mancipatio; that is why they are called res mancipi. But in iure cessio works as well as mancipatio. [translation: Handouts]

In this text, Gaius explains one of the most fundamental concepts of the law of property. The Romans (as in modern civil-law systems) distinguished between cause and conveyance. The cause referred to the legally valid reason why ownership was transferred from one party to another and the conveyance referred to the ritual act which facilitated the transfer of ownership. So, in the cases mentioned above by Gaius, the cause would have been the sale or the gift, the conveyance would be the act (delivery or mancipatio).

For res mancipi, a formal ceremony was required whereas the same level of formality was not required for res nec mancipi. Gaius describes the mancipatio procedure in the following terms:

Inst.Gai.I.119. Mancipatio as we have already said, is a kind of symbolic sale (imaginaria venditio) and it too is an institution peculiar to Roman citizens. This is how it is done. In the presence of not less than five Roman citizens above the age of puberty as witnesses and a sixth person with the same qualification to hold the bronze scales, called a scale-holder (libripens), the person who is taking by the conveyance (mancipium) holds the property [or the bronze] and says: 'I declare that this slave is mine by the Quiritary law (ex iure Quiritium) and let him have been bought by me [or and he has been bought by me] (emptus esto or est) with this bronze and bronze scales. Then he strikes the scales with the bronze and gives it to the person from whom he is receiving by the conveyance as if it were the price (quasipretii loco). [translation: Handouts]

The ritual described here suggests a procedure of considerable antiquity. It does not take much to appreciate that this formal requirement was not particularly conducive to the demands of commerce. Also, given the large number of foreigners who did not have access to Roman civil law and the increase in the number of things which were not res mancipi and yet formed part of commercial transactions, it comes as little surprise that this category and the mode of conveyance associated with it was in decline during the classical period. Although it continued to exert some influence on the transfer of ownership of certain types of property, in practice the modes of conveyance of ownership which required less formality such as delivery (traditio) must have become more common. Take, for example, the following text:

Inst.Gai.II.65. It appears from what we have said that some things become the property of someone else (alienari) by natural law, as where they are transferred by delivery (traditio), and some by civil law; for mancipatio, in iure cessio and usucapio are confined to Roman citizens.

Gaius' point in this text is that the older forms of conveyance such as mancipatio (and also cessio in iure) were peculiar to Roman citizens, while the modes that required less formality like delivery (traditio) arose out of the law of nature. By referring to the law of nature, Gaius is reinforcing the point that these modes are derived from external influences (natural law). We shall return to these modes of acquisition of ownership presently. For the moment is sufficient to note that traditio must have been the most common form of conveyance during the classical period.

Owing to the fact that prior to 212 CE Roman law applied only to Roman citizens (or those foreigners who had been granted the privilege of engaging in commerce with the Romans using their own law, said privilege being called the ius commercii), it is not possible to speak of one unified idea of 'ownership' in Roman law for much of the classical period. Since the focus of Gaius' textbook is Roman law as it applies to Roman citizens, it comes as little surprise that the 'form' of ownership on which he focuses most of his attention is ownership according to Roman law. The term used is dominium ex iure quiritium. This phrase, which the Romans never define (nor did they need to as definitions were not really central to Roman legal thought), is pregnant with meaning. Let us take the first word, dominium - a word which is etymologically related to dominus (boss, lord). By describing someone as having dominium of an object, you are implying that they are the boss of it and that they have the strongest entitlement to the property. Such an entitlement can only arise out of a legally valid reason supplemented by an appropriate mode of conveyance. The second phrase is also quite telling. By linking the idea of ownership to the Quirites (a term which appears frequently in Virgil's Aeneid and which links Roman civilisation with Aeneas and the Trojans) the Roman jurists reinforced the point that Roman ownership was a uniquely Roman and hallowed entitlement to objects which was as old as their civilisation itself.

The pluralist nature of ownership in Roman law prior to 212 CE is nowhere more clearly visible than in the concepts of 'provincial' and 'peregrine' ownership. Ownership (in the sense of dominium ex iure quiritium) could only be held over Italic land (or land which had been given the privilege of 'Italic soil') by Roman citizens. Land in the provinces was incapable of private ownership as it was deemed to be res publica, i.e. belonging to the Roman state. The only type of right at private law which could be acquired over such land was a form of protected possession (uti frui habere possidere) subject to the payment of an annual tribute (Kaser/Knutel §22.10). In the time of Gaius, there were two types of provincial land: stipendiary land was located in provinces 'belonging' to the Roman people (but administered by the senate) and tributary land was located in provinces 'belonging' to the emperor. In both cases, those who lived on such lands had to pay taxes (stipendium/tributum). Since these lands were res nec mancipi, 'ownership' could be transferred through a delivery alone. This may explain the legal context of the following text from Roman Britain (an imperial province):

... Whereas, on arriving at the property in question, the wood Verlucionium, fifteen arepennia more or less, which is in the canton of the Cantiaci in Dibussu [ ] parish, [ ] neighboured by the heirs [of...] and the heirs of Caesennius Vitalis and the vicinal road, Lucius Junius Bellicus said that he had bought it from Titius Valerius Silvinus for forty denarii, as is contained in the deed of purchase... [On this tablet, see R.S.O. Tomlin, 'A five-acre wood in Roman Kent' in Interpreting Roman London: Papers in Memory of Hugh Chapman ed. J. Bird et al., 209­15 (Oxford 1996).] [translation: Tomlin 211]

As with so many documents of this kind, the text breaks off at a crucial point. What we can deduce from it, though, is that two Roman citizens (we assume their names were given) transacted for the sale of a wood and that the sale was recorded in writing.

The position of foreigners must also be borne in mind. Some legal texts refer to 'peregrine ownership', that is, 'ownership' held by foreigners living in Roman territories according to their own laws. Unfortunately, given the focus of Gaius' Institutes, too little information remains to speculate about the nature of this concept and how it interacted with Roman ownership. One thing is certain: the promulgation in 212 CE of the Constitutio Antoniniana which granted Roman citizenship to most of the free inhabitants of the Roman Empire must have had a significant impact on the plurality of 'ownership' in Roman law (especially in Egypt). The effect of this enactment seems to have been twofold. First, it demolished the distinction between Roman and peregrine ownership, since most free people within the boundaries of the Roman Empire now had Roman citizenship. Secondly, it must have undermined the distinction between Roman ownership of Italic land and Roman 'ownership' of provincial land. This may be one of the reasons why Diocletian abolished the distinction in the early fourth century CE.

Apart from ownership, the most complete entitlement which a person could exert over property, the Roman jurists also developed a number of more limited entitlements which persons could exercise over the property of others. This development was no doubt a product of the increasing sophistication of property law. These rights were not as comprehensive as ownership, but entitled the holder to some level of legal protection. The oldest category of these (what we would call limited real rights in modern law) arose out of agricultural practice where the grid-like system of Roman surveying caused some plots of land to be cut off from water sources or main roads. Thus, a legal institution had to be created to allow the owners of such land to have access to such resources, which may be located on the land of another, and to regulate the relationship between the owner of that land and the other party. Gaius describes it as follows:

Inst.Gai.IV.3. An action in rem is one in which we claim either that some corporeal thing is ours, or that we are entitled to some right such as use (usus) or usufruct (utendi fruendi), a right of way on foot (iter), a right to drive across (actus) a right to channel water (acquaeductus), a right to raise a building (altius toliendi) or prospect (prospiciendi). On the other hand, an action to deny these (negativa) is open to our opponent. [translation: Handouts]

Notice how Gaius speaks of an actio in rem (we will return to this concept in greater detail in our discussion of the law of procedure in Chapter 4). One could use this action to claim that one had 'some right' over the property of another. He then lists some of the more ancient ones which applied mostly to property situation in a rural location. These rights were collectively called servitudes and they were deemed to be (in theory) perpetual and attached to the land. Since they imposed a burden on someone else's property, they could only be created in a formal manner. Take the following statement by Julian:

D.8.2.34 (Julian, Minicius, book 2). A man who has two tracts of vacant ground can, on the conveyance of one of them, impose a servitude in favour of the other. [translation: Handouts]

Here, the creation of the servitude is linked to the formal conveyance of the land which, assuming it was Italic land, had to be done using a mancipatio. Since provincial land could not be owned in this way, the Romans had to devise specific rules for the creation of servitudes on provincial land. Gaius tells us the following:

Inst.Gai.II.31.... If on the other hand it is over provincial lands that a man wishes to create a usufruct or right of way [etc.]... he can do this only by means of pacts and stipulations, because these lands are not susceptible of either mancipatio or in iure cessio. [translation: Handouts]

Because the existence of servitudes created a relatively complex relationship between the owner of the property and the other party, Roman law developed sophisticated rules to minimise conflict. Take the following example:

D.8.1.9 (Celsus, Digest, book 5). Suppose a man is granted or bequeathed a right of way (via) without reservation over another's estate. He may walk and drive across it without restriction, that is across any part he chooses, as long as he does it in a reasonable way (civiliter modo): a general mode of expression is always subject to a tacit reservation. He need not be allowed to walk through the homestead (villa) itself, or among the vineyards, if he could have gone another way with less damage to the servient estate. Indeed it is settled he ought to walk or drive only along the route decided at the start.... [translation: Handouts]

Notice how in this text the criterion 'reasonable manner' is used to assess the conduct of the holder of the usufruct.

The oldest category of servitudes, which date back to the time of the Twelve Tables, were those which attached themselves to land. In time, this category was supplemented by another, collectively known as personal servitudes. They are described in the Digest as follows:

D.8.1.1 (Marcian, Rules, book 3). Servitudes are either attached to persons, like use (usus) and usufruct (usufructus) or to property as in the case of servitudes of rustic and urban estates. [translation: Handouts]

The main difference between these two categories was that personal servitudes did not attach themselves to the land. They were created for the benefit of a specific person (such as a widow or a ward) and thus only endured as long as the named beneficiary was alive (this was an offshoot of the Roman concept of universal succession upon inheritance, as we shall presently see):

D.7.4.3.3. (Ulpian, Sabinus, book 17). That a usufruct is also lost by death does not admit of any doubt, since the right of enjoyment is extinguished by death, just like any other right which attaches to the person. [translation: Handouts]

They could also be extinguished by non-use for a period of time. Like real servitudes, personal servitudes also had an impact on the owner's use of the property. In a sense they were more invasive as they enabled the holder to use and draw the fruits of the property without burdening them with responsibilities of ownership. To regulate the relationship between these competing interests, the Roman jurists developed the following principle:

D.7.1.1 (Paul, Vitellius, book 3). Usufruct is the right to use and enjoy (ius utendi fruendi) the things of another without impairing their substance (salva rerum substantia). [translation: Handouts]

Depending on the nature of the property, the holder of the usufruct had to ensure that his exploiting of the property did not have a negative impact on its 'substance', a philosophical idea which referred to the essence of the property. The Roman jurists discussed this aspect in great detail. As for the exploitation of the property, this could sometimes create complex legal problems. Take, for example, the following case:

Inst.Gai.II.91. With regard to slaves over whom we have a usufruct, the rule is that whatever they acquire in connection with out affairs or from their own work is acquired for us, but that anything they acquire outside these two accounts belongs to the owner whose property they are. [translation: Handouts]

In this case, one person owned the slave while another held a usufruct over him. Gaius explains that the capacity of the slave to make money is divided between the holder of the usufruct and the owner of the slave.

One other form of 'limited real right' which requires mention is that of real security. It was a peculiar area of the law of property as it straddled both property and contract (the common way in which real securities were created.) Real security referred to the scenario where the financial value of objects was used to raise capital. Thus, where someone owned a valuable statue and needed to raise a loan, they went to a money-lender who lent them money against the value of the statue. By law, the money-lender acquired a real right over the statue. Under Roman law, two forms of real security were available. The more antiquated form involved the handing over of the statue to the money-lender for the duration of the loan, while the more developed form did not require the relinquishing of such possession. Should the debtor fail to repay the loan according to the terms agreed, the money-lender, by virtue of his rights in real security, acquired the right to attach and even sell the object to recover the loan. We will discuss this further in our treatment of the law of contracts.

The formalities attached to certain modes of conveyance in Roman law, coupled with the complexities surrounding the 'ownership' of provincial land, necessitated the existence of a flexible concept which could protect those who had a legitimate interest in property, but who did not necessarily have ownership. Gaius describes it as follows:

Inst.Gai.II.40.... in olden times... a man was either Quiritary owner or he was not considered owner at all. But later ownership became divisible, so that one man may be Quiritary owner, and another 'bonitary owner' (in bonis habere). 41 So if I neither mancipate nor cede in iure a res mancipi to you, but just deliver it, you become bonitary owner, but I will still be Quiritary owner, until you have usucaped it by possession. Once usucapio is complete, it becomes fully yours.... [translation: Handouts]

The scenario described by Gaius in this passage is one of the main reasons for the rise of possession. In this case, the parties had intended to transfer ownership, but for some reason had used an inappropriate mode of conveyance. This meant that ownership did not transfer and that the person who had acquired the property did not become the owner as intended. To protect him from external claims, Roman law developed the idea of 'bonitary ownership' (a form of protected possession) until such time as his entitlement to the property could mature into full ownership through the passage of time.

Possession denoted physical control of a piece of property coupled with a certain mental intention (either to be the owner as in the example above or to exercise a legitimate entitlement over the property by virtue of, say, another right). Unlike ownership, which was classified as the most complete entitlement to property, possession was a question of fact which depended on the continued physical control of the property (not just personally, but also via other persons such as slaves and dependant children). This may account for this celebrated statement by Ulpian:

D.41.2.12.1 (Ulpian, Edict, book 70). Ownership has nothing in common with possession: so someone who has raised a vindicatio over some property is not to be denied the interdict uti possidetis. He is not held to have renounced possession by bringing a vindicatio. [translation: Handouts; vindicatio is the action to claim ownership; the interdictum uti possidetis, a Praetorian Interdict designed to protect existing possession]

Certain forms of possession (on account of the reason why a person had acquired possession in the first place) were protected in Roman law by remedies granted by the praetor. Gaius tells us the following:

Inst.Gai.IV.139. In certain cases the praetor... interposes his authority in order to end disputes. He does this mainly when the parties are contending over possession or quasi­possession. Basically he orders or forbids something being done. The formulae or pleadings used for this are called interdicts (interdicta). [translation: Handouts]

Inst.Gai.IV.148. An interdict for retaining possession is usually issued when two parties are disputing as to the ownership of some property, and the preliminary question of which of the litigants is to be in possession and which is to be pursuer arises. This is why the interdicts uti possidetis and utrubi have been provided. 149 The interdict uti possidetis is given in respect of the possession of land or houses, the interdict utrubi in respect of the possession of movables. [translation: Handouts]

D.43.17.1pr (Ulpian, Edict, book 69). The praetor says 'I forbid the use of force to prevent whichever of you now possesses this building (the subject of the action) without force, stealth or licence as against the other party (nec vi nec clam nec precario ab altero) from continuing so to possess it.' [translation: Handouts]

These were summary remedies designed to preserve the status quo until such time as the issue of ownership could be resolved. It has often been asked why Roman law chose to protect possession, sometimes even at the expense of ownership. Various justifications have been offered, namely that it prevents violence and that it encourages the resolution of disputes. In reality, the reasons for the rise of possession are probably many and varied and include both the ones mentioned here as well as those mentioned above.

Having explored these two central concepts, we must now turn to ways in which one could acquire ownership in property. As mentioned above, one of the central purposes of the different modes of classification of property in Roman law was to highlight the fact that different types of property required different modes of conveyance. Roman legal texts contain much discussion on the different modes of acquiring ownership. The significance of these modes is twofold. First, they are broadly grouped into two categories (civil-law modes and natural-law modes). Gaius tells us the following:

Inst.Gai.II.65. It appears from what we have said that some things become the property of someone else (alienari) by natural law, as where they are transferred by delivery (traditio), and some by civil law; for mancipatio, in iure cessio and usucapio are confined to Roman citizens.

The reference to natural law here is important. As mentioned before, Gaius uses it here mainly to reinforce the point that the civil-law modes are peculiarly Roman (and therefore could only be used by Roman citizens prior to 212 CE), while the natural-law modes were more broadly available to everyone regardless of their status.

Of the civil-law modes, the most important were mancipatio, cessio in iure and usucapio. The former two were already of some antiquity by the advent of the classical period and describe the earliest modes of transfer of ownership. As we have seen above from a description of the act, mancipatio was a ritual that involved witnesses and a symbolic 'sale' of the object present, while cessio in iure required the presence of a magistrate to transfer ownership of property. The latter was even more cumbersome than the former, as we can see from this comment by Gaius:

Inst.Gai.II.25. Usually, however, indeed nearly always, we use mancipatio because there is no need for us to do with greater difficulty before a praetor or provincial governor what we can do for ourselves in the presence of friends. [translation: Handouts]

Nonetheless, it was required for certain types of conveyance on account of the nature of the object:

Inst.Gai.II.29. While urban praedial servitudes can only be ceded in iure rustic ones can also be mancipated. 30 Usufruct can only be ceded in iure.... [translation: Handouts]

Usucapio was a mode of acquisition which rectified some of the problems inherent in insisting on a very formal mode of acquisition of ownership. Through the passage of time and under certain conditions, defects in the transfer of ownership could be 'cured', resulting in full dominium (we have already encountered this above in relation to bonitary ownership).

Inst.Gai.IL41. So if I do not mancipate or surrender in iure as res mancipi to you, but just deliver it, it becomes yours in bonis but remains mine by Quiritary right until you have usucaped it by possession. Once usucapio is complete you are fully entitled (pleno iure) to it, both in bonis and by Quiritary right, just as if it had been mancipated or surrended in iure. [translation: Handouts]

In classical Roman law, the fact of possession was further refined into a number of additional requirements, namely that the holder had to have acquired it in good faith, pursuant to a lawful cause and that the object had not been stolen. All of these should be seen as ways in which to further circumscribe the conditions under which this institution could operate.

Usucapio was an institution of some antiquity which was already prevalent at the time of the Twelve Tables, as Gaius tells us:

Inst.Gai.II.42. Usucapio of movables is completed in one year, that of lands and buildings in two. This is laid down by the Twelve Tables. [translation: Handouts]

Inst.Gai.II.44. This system appears to have been adopted to prevent there being uncertainty over the ownership of property for too long. The periods of one or two years required for usucapio by a possessor are sufficient for an owner to trace his property. [translation: Handouts]

The natural-law modes, so called because they were not unique to Roman law, form a disparate category which covers a wide range of circumstances. They include matters such as the capture of ownerless property, the creation of a new object out of raw materials belonging to different owners and the finding of treasure on another's land. Let us look at a few examples:

Inst.Gai.II.66. It is not just those things we acquire by delivery which become ours by natural reason, but also those we acquire by occupation (occupatio), because they did not previously belong to anyone (res nulHus) for example every creature captured on land, in the sea or in the air. [translation: Handouts]

D. 41.1.26pr (Paul, Sabinus, book 14).... Proculus declares that the rule in force is that which has been approved by Servius and Labeo. In the case of objects which have a proper quality (propria qualitas), anything added to them is merged with the whole; for instance, a foot or hand with a statue, the bottom or handle with a cup, a bed-post with a bed, a board with a ship. The whole statue, cup, bed, ship or building still belongs to its former owner. [translation: Handouts]

The principle expressed in the first text is that of ‘first capture of ownerless property'. By seizing something which is without owner, the property becomes ours through the exercise of our right to seizure. It does not take much to appreciate that such a mode would have been a very useful ex post facto intellectual justification to a conquering civilisation such as the Romans. What Gaius is articulating in this text is merely a legal justification for a very ancient notion, namely ‘first come, first served'. The second text articulates a more complicated notion which in legal terms is called accessio or merger. If two objects belonging to different owners are merged inseparably into one, who becomes the owner of the composite (especially where this has been done without consent)? Notice how, in the examples given here, it is possible to identify a primary object (the armless statue) and a secondary object (the arm) - this was an important notion in determining who had ownership of the newly created thing. The rule articulated in this text is that the owner of the primary object also becomes the owner of the secondary object through the act of merger. Of course, depending on the intention with which the separation had been done and by whom, the owner of the secondary object (the arm) could be expected to be compensated. Given the theoretical and logical puzzles thrown up by these modes, they provided much room for juristic discussion, but one cannot help but think that much of these discussions are theoretical/didactic rather than actual legal queries.

Arguably the most important (and practically useful) example of a natural-law mode was that of delivery. It was the standard way of transferring ownership of anything which was not res mancipi and its lack of formality contributed to its increasing popularity as a mode of transferring ownership. Take this statement by Gaius:

Inst.Gai.II.19. For res nec mancipi became wholly another's property by delivery (traditio) alone, provided they are corporeal and so can be delivered. 21 The same applies to provincial lands.... [translation: Handouts]

Given the lack of formality attached to this mode of conveyance, it does not take much to appreciate that it would have been very useful in practice. The final comment regarding provincial land is particularly telling. If all provincial land (prior to 212 CE) could not be 'owned' according to Roman civil law, the only way to obtain a valid conveyance in order to become the 'provincial owner' of a piece of land was by way of traditio pursuant to a cause such as sale or donation. This can be seen from the following text:

D.41.1.31pr (Paul, Edict, book 31). Mere delivery (nuda traditio) never transfers ownership, but only if it is preceded by a sale or some other just cause (iusta causa) for delivery. [translation: Handouts]

But how could one convey ownership of land if for delivery to take place there had to be a 'handing over' of the property? To increase the utility of this mode, the Roman jurists devised analogous modes to take account of the different types of property. Take the following example:

D. 41.2.1.21 (Paul, Edict, book 54).... That it is unnecessary to take possession by physical contact (corpore et tactu) but that it can be done by sight and intention (oculis et affectu) is proved [Priscus] says, by those things which owing to their great weight cannot be moved such as columns. For these are considered to be delivered if the parties consent in the presence of the thing.... [translation: Handouts]

It is interesting to note that there are no corresponding discussions in Roman legal texts concerning the modes of acquisition of possession. In fact, other than some mention of the different types of possession and how these were protected, there is little else to be gleaned from the texts. Why is this? The obvious answer lies in the difference between ownership and possession. Ownership was the highest legal entitlement to property which could only be acquired through certain well-established modes of conveyance whereas possession was merely a state of fact which required legal protection under certain circumstances.

The main remedy for the asserting of ownership was the vindicatio rei. It was a legal action only available to the owner of the property under Roman law. It is a remedy which developed during the Republic and allowed the owner of the property to reclaim it from any third party by asserting his ownership over the property. Ulpian tells us the following about the remedy:

D.6.1.1 (Ulpian, Edict, book 16). Such an action in rem to recover a specific thing (specialis) is available for all moveable property, animate and inanimate, and also where land is involved. [translation: Handouts]

Notice the wide scope which this action had, the only restriction being that it could only be brought in respect of corporeal property. As we will see in chapter 4, the 'action' mentioned here was based on a specialist 'formula' which dictated to the parties which words they had to use to frame their lawsuit. For the vindicatio the formula consisted of statements such as:

Inst.Gai.IV.41 The intentio is the part of the formula in which the pursuer states his claim, for example... 'if it appears that the slave belongs to Aulus Agerius by Quiritary rights' [Aulus Agerius being the stock name given to the plaintiff]. [translation: Handouts]

Notice that the formula states 'if it appears.'. This means that the person asserting ownership of the slave has to bring evidence that he owns it by Quiritary right, in other words that they have dominium ex iure quiritium. How could one prove this? The easiest way would be to demonstrate that you had acquired the property on the grounds of a legally justifiable reason (the causa), for example that it was sold to you by the rightful owner and that you had paid for it, and secondly that an appropriate mode of conveyance had been completed. Alternatively, even if one of these elements were lacking, you could always demonstrate that the period for prescription had passed and that you had legally acquired it through the passage of time.

This action was usually, in the case of movable property, brought in conjunction with the actio ad exhibendum, which forced the party in control of the property immediately before the lawsuit commenced to produce the object over which ownership was disputed in a court of law. Once the parties were present, together with the object in question, both had to lead evidence regarding their claim on ownership. The burden of proof lay with the party who did not have possession of the object during the lawsuit. The judge made a ruling and assigned ownership to one of the parties.

Although these were the most prominent property-law remedies in Roman law, it is worth pointing out that other branches of Roman law also provided protection to the owner of the property namely wrongful damage to property and theft. Various praetorian remedies could also be used to protect property. The cautio damni infecti, for example, allowed an owner of land to obtain a guarantee from a neighbour whose building work threatened to cause loss whereas the interdictum quod vi aut clam could also be used where building work had been undertaken with force or stealth.

As far as the owner's relationship with his neighbours is concerned, Roman law had a few remedies which could be referred to using the collective term ‘neighbour law'. The earliest of these, which appear in the Twelve Tables of 450 BCE, regulate the determining of boundaries of land and the unlawful cutting of a neighbour's trees. By the classical period, these initial remedies had been supplemented by a number of others which regulated matters as diverse as the diverting of rainwater, damage caused by dripping eaves, obscured views on account of a neighbour's building activities and various others. The proliferation of remedies affecting neighbours during the classical period is an indication of the increased urbanisation of the Empire and the problems which it caused as well as the increase in agricultural activities where a number of different landowners depended on the shared use of a shared resource such as a river or a lake.

Compared to the remedies which were available to protect ownership, those used to protect possession were more immediate. This reflects the factual nature of possession. Possession was not protected using a legal remedy which had to be brought in the context of a court of law. Rather, the remedies were summary and could be obtained within a short period of time by applying to the praetor. There were three types of interdict. Those to obtain possession for the first time, those to protect existing possession and those to recover prior possession now lost. All that an applicant to the court had to demonstrate in order to succeed with an interdict was that the possession was not obtained through force, stealth or by permission. From the small number of requirements it is clear that the purpose of these remedies was to preserve the status quo, usually as a precursor to a lawsuit about the ownership of the property.

No discussion of the law of property would be complete without some mention of the property-owing capacity of the members of the Roman family. As pointed out in Chapter 2, most of the Roman law of persons and family was written from the perspective of the person at the top of the 'status' pyramid. In Roman terms, this was the head of the household. All other members of the familia had reduced/derivative statuses in comparison (as we can see from Gaius' division of persons into those who were legally dependent/independent etc.). Thus the capacity of wives, dependent children and slaves, who all formed part of the familia, to own property was in some sense diminished by their status. The rules regarding the capacity of these individuals to own property are fascinating and detailed and provide us with an insight into the Roman legal mind (especially the way they interact with notions of guardianship and tutelage). Given the aim of this book, however, they are best left to more detailed discussions of Roman law.

Suggested further reading

The following books contain more detailed surveys of the Roman law of property:

Bannon, C. Gardens and Neighbours: Private Water Rights in Roman Italy (Ann Arbor MI 2009)

Birks, P. (ed.) New Perspectives on the Roman Law of Property (Oxford 1989)

Diosdi, G. Ownership in Ancient and Pre-classical Roman Law (Budapest 1970)

Finley, M. (ed.) Studies in Roman Property (Cambridge 1976) Rodger, A. Owners and Neighbours in Roman Law (Oxford 1972) Watson, A. Rome of the XII Tables: Persons and Property (Princeton NJ 1975)

Watson, A. The Law of Property in the Later Roman Republic (Oxford 1968)

3.2.