The classification of property

The Institutes of Gaius, written in the mid-second century AD, contains three state­ments on the classification of property. The first of these, the so-called 'primary division', classifies all property as being either subject to human or to divine law.

differently. (For a systematic comparison of the changes introduced, see also Du Plessis, 1’ J., 'Property', in Cambridge Companion, 175-98.) The· most important of these classifications will be discussed here, (see Inst.2.1.).

6.1.1 Corporeal and incorporeal things

(lnst.Gai.2.12.-14., Inst.2.2.)

The word res is much used in Roman law: it is capable of several different mean­ings. Originally, its primary meaning was a 'thing', in the sense of a physical object, l.ater, res came to have a potentially much wider meaning, comprising an extended notion of property: it was any asset that had economic value (cf. D.50.16.222). T his widening of the meaning of res was reflected in the distinction that emerged in the later Republic between corporeal and incorporeal things (res corporales and incorpo­rales} (cf. Inst.Gai.2.12.; 28.). Phis distinction was important, since only corporeal things could be possessed and could be acquired in ownership through usucapio.

6.1.2 Public and private things

(Inst.Gai.2.9.-11.)

Things were classified according to whether they could be owned privately or not, a distinction of obvious practical importance (see Inst.Gai.2.1.). There were several categories of property that could not be privately owned.

6.1.2.1 Res communes

These were things common to all men, e.g. the air, running water, the sea. Although such things could not be owned, the law recognized a right to enjoy them: delib­erate interference with enjoyment could result in a delictual remedy for insulting behaviour (see 10.4.2.1). It has been suggested that this category originally formed part of the category of res publicae and was only separated from it during the later classical period.

6.1.2.2 Respublicae

These were 'public' things, regarded as belonging to the State, e.g. public roads, harbours, ports, certain rivers, bridges, and enemy property captured in military action. Perhaps the most important 'public' property was provincial land, i.e. land in the provinces outside Italy. A distinction was drawn in the Empire between sena­torial and imperial provinces. The former were regarded as belonging to the Roman people, but the latter (generally the more recently acquired territories) were clas­sified as Imperial property. This type of ownership was not ownership according to Roman private law (i.e. quiritary ownership), but a special form of ownership governed by public law. See Schulz, Classical Roman Law()95\), 340-1 for a detailed discussion of this point. Although provincial land could not be owned privately, proprietary interests in it were possible (see 6.4, see Kantor, G.

Rivers were regarded as public things if they were perennial, i.e. normally flowing all the year round. Although such a river could not be owned, its beds and banks could be; but it seems that the riparian owners (i.e. the owners of the river banks) could not prevent the public from using the banks to enjoy the river. Remedies were normally available to protect the enjoyment or use of public things. Interdicts, in particular, could be used for this purpose. (On the application of this doctrine in modern Scots law, see Will's Trustees v Cairngorm Canoeing and Sailing School Ltd 1976 SC (HL) 30 at 11.2.3.5.)

6.1.2.3 Res universitatis

These were things that were intended for public use, owned by corporate public bodies such as municipalities and colonies. This category included, e.g., public streets and buildings, theatres, parks, racecourses, and stadia. The category is first described as such under Justinian, although it probably dates from the classical period where it is generally described as res publicae.

6.1.2.4 Res nullius

Things belonging to no one, a heterogeneous category which included wild ani­mals, abandoned property, and 'divine' things. Such things could be subject either to human or divine law (Inst.Gai.2.3.-8.):

(a) Res sanctae Things considered to be protected by the gods to whom they were consecrated, crucial to the safety of Rome, e.g. city walls and gates. Anyone violating them was subject to heavy criminal sanctions (hence ‘sanctae'), including the death penalty in some cases.

(b) Res religiosae 'These are tombs, sepulchres, mausoleums, cenotaphs, and land used for burial. Certain conditions had to be satisfied before burial ground was classed as 'religious’. Tomb inscriptions suggest that the Romans paid scant regard to the rule that tombs, and burial land could not be owned privately—sales and gifts of such things are often mentioned.

(c) Res sacrae Things formally consecrated and dedicated to the gods, e.g. temples, shrines, and sacred groves (see Inst.Gai.2.3.). After the conversion to Christianity, churches were classed as res sacrae.

Certain res nullius could fall into private ownership (at which point they ceased to be res nullius). For example, ownership could be acquired over wild animals and abandoned property by occupatio (Inst.2.1.12.) (see 7.2.3).

For a survey of the ownership implications of these categories, see Schulz, Classical Roman Law (1951), 340-1, and Jakab, E. 'Property Rights in Ancient Rome’ in Land and Natural Resources, 109-35.

61.2.5 The seashore

The distinction between the categories of public things was not always clear. The seashore certainly lacked a clear legal identity. We will therefore use it as an example to demonstrate the complexity of these classifications. One text states:

Neratius, Parchments, book 5:... shores are public, not in the sense that they belong to the community as such but that they are initially provided by nature and have hitherto become no one's property. (D.41.1.14pr.) (Compare Inst.2.1.3.)

Other texts describe the seashore as 'being open to all' (D.18.1.51.), or as 'common to all' (D.47.10.13.7.) or as 'belonging' to the whole people:

Celsus, Digest, book 39: The shores over which the Roman people has dominion I consider to belong to the Roman people. (D.43.8,3pr.)

More important than its theoretical status was the question of the use to which the seashore could be put. Everyone certainly had the right of access to the seashore, as in the case of riverbanks. No one could acquire any part of the seashore, but shelters and similar erections could be built, if authorized, and became the property of the builder: I’omponius, From Plaiitius, book 6: Although what we erect on the shore or in the sea becomes ours, a decree of the praetor, nevertheless should be obtained, authorizing the erection.

Whether authorization was always necessary is not clear. In D.43.8.4, we are told that building on the seashore is 'allowed' by the law of nations ‘unless public use is impeded'—no hint there of the necessity for magisterial consent.

6.1.3 Movables and immovables

This classification of property, which was not as important in Roman law as later on in medieval law, distinguished between land (immovables) and anything else (movables) that could be owned privately. Land itself was classified as Italic land (defined eventually as land south of the Rivet Po) or provincial land, i.e. outside Italy, the distinction having important consequences, e.g. Italic land was res mancipi (see 6.1.5). The classification of property into movables and immovables had some important consequences but was less pervasive than in English law (because of the overwhelming primacy of land in English feudal society). Buckland and McNair, in Roman Law and Common Law, refer to 'the comparative insignificance in Roman law of the distinction between land and other property' (60).

6.1.4 Fungibles and non-fungibles

Fungibles were things that were regarded as existing primarily in quantities (e.g. money, grain) rather than as separate entities. Fungibles are normally consumed through use. Non-fungibles were things which had a separate identity and a degree of permanence, e.g. a book, land, a chariot. The distinction between fungibles and non- fungibles was of importance particularly in the law of contract—e.g. the contract of mutuum (see 9.5.1) was concerned specifically with the loan of fungibles. Furthermore, sale of fungibles could only take place by way of stipulatio, whereas non-fungibles could be sold using emptio venditio. And the distinction had some significance in the law of property, e.g. in the Republic there could not be a usufruct of fungibles.

6.1.5 Res mancipi and res nec mancipi

(Inst.Gai.2.14a.-23.)

This was the most important classification of property in archaic Roman law (see Du Plessis, 'Property', 184-5).

What were res mancipi? A satisfactory definition has proved elusive; it is easier to list the things that were recognized as res mancipi than to define the species. According to Gaius (Inst.2.14a.) res mancipi comprised the following things: slaves, beasts of draft and burden, Italic land, houses on such land, and rustic praedial servitudes (i.e. easements and profits over land). As regards the animals, there was a juristic dispute about the moment when the beasts became res mancipi—the Sabinians claimed that it was at birth, whereas the Proculians held that it was when the animal was broken in. Gaius lists oxen, horses, mules, and donkeys as examples of beasts of burden, but the list appears to have been comprehensive—no other ani­mals seem to have been regarded as res mancipi. Once the category of res mancipi was established in early law, it did not prove susceptible to amendment. For example, camels and elephants could be regarded as beasts of burden but were encountered by the Romans after the list of res mancipi was established—so they did not qualify. The most probable reason for the reluctance to expand the list of res mancipi was that the formal modes of conveyancing necessary to transfer dominium in such things increasingly came to be seen as cumbersome and inconvenient.

Now that the list of res mancipi is known, how can the category be defined? The most accurate definition may be 'those things which had to be conveyed by mancipatio or cessio in order for dominium to pass', but this tells us little about the character of res mancipi. To describe them as the most 'valuable' things is mislead­ing since items such as jewellery or gold caskets were not res mancipi. 'Important things' is a more accurate definition but lacking in precision. Considering each constituent of Gaius's list, and the period in which it was established, res mancipi can best be described as things useful or essential to the household in early Roman society: 'the most important means of production of a peasant economy belonged to the res mancipi. Slaves, horses, oxen, asses, and mules furnished the indispensa­ble manpower, while the land and the appertaining praedial servitudes served as a basis for the subsistence of the family' (Diosdi, Ownership, 57). AU other things.. (however important, useful, or valuable) were classed as res nec mancipi, and did not need to be conveyed by the formal modes of conveyance; simple delivery (traditio) sufficed to pass full title. In later law, the distinction between res mancipi and nec mancipi lessened in importance due to the decreasing use of mancipatio and cessio, and because of the operation of bonitary ownership (see 7.2.2). By Justinian's time, The distinction had become largely an irrelevance—its abolition was long overdue (see C.7.31.1.5.).

6.2