Usucaption

Usucaption was a way of acquiring civil ownership of a thing through unin­terrupted possession of it for a certain time: one year for movable things and two years for immovable things.

Besides the aforementioned period of time required by the law, the acquisition of civil ownership by usucaption required property subject to private ownership (in commercio); provincial land could not be acquired by usucaption, even by a Roman citizen. Furthermore, stolen things and things taken by force were excluded from usucaption, even when they were in the hands of a possessor in

good faith. Thus, usucaption also required the possessor’s good faith (or sub­jective honesty and truthfulness) when taking possession of the thing. (The loss of good faith during the process of usucaption, by a person’s learning that he was not entitled to possess the thing, was legally irrelevant for acquisition by usucaption.) Also needed was a valid title (iusta causa or iustus titulus).

Longi temporis praescriptio

This was an institution similar to usucaption and originated in the Eastern provinces to resolve questions surrounding the acquisition of provincial land, which could not be owned by Roman citizens. Originally, the praescriptio was a sort of defense, similar to the exception in the formulary procedure, i.e., a remedy to protect a person who possessed provincial land for at least ten years if both plaintiff and defendant lived in the same village (under Justinian, in the same province); or for a person who possessed the land for twenty, if the plaintiff and defendant lived in different villages (PS. 5.2.3; C.J. 7.33.9.12). Subsequently, this protection was extended to cases involving movable items possessed by peregrines (foreigners) until the category of peregrines disappeared after the enactment of the Edict of Caracalla (212 CE). In order to be protected, the defendant had to have a valid title and good-faith possession at the beginning.

The longi temporis praescriptio evolved gradually from a form of extinctive prescription, i.e., one where the claim against the possessor was made per­manently unenforceable, to a form of acquisitive prescription, like usucaption, by which the possessor could acquire ownership.

Rei vindicatio

The rei vindicatio was a real action (actio in rem) founded on civil law by means of which the owner of an item, who lost possession of it, sued the

Property law 155 possessor for recovery. The plaintiff usually requested this remedy of rei vinci- catio after losing in an interdictal procedure against the possessor protected by possessory interdicts. Under Justinian’s law, however, the civil owner could bring action not only against the possessor protected by possessory interdicts but also against so-called fictitious possessors, that is, those who had fraudulently given up possession to prevent the rei vindicatio.

Proving ownership was very often a difficult task for the plaintiff. If the plaintiff had received the thing from another person, he had to prove that his predecessor was also the owner when he transferred that thing to him. But in order to prove the validity of this transfer of property, he also had to prove that the previous transferor was also the owner. This could lead to an endless series of impossible proofs of ownership, which the medieval jurists humorously called Devil’s proof (probatio diabolica). The institution of usucaption ligh­tened the owner’s burden of proof. Gaius made a clear statement about this point (D. 6.1.24): “Anyone who has decided to sue for a thing ought to con­sider whether he can obtain possession by some interdict. For it is much more convenient to be in possession himself and put the burden of being plaintiff on his adversary than for him to sue with his adversary in possession.”

The formula for an action rei vindicatio was the following: “Let Titius be judge. If it appears that the slave Nicia that is at issue belongs to Aulus Agerius at civil law, and the slave has not been restored to Aulus Agerius according to the opinion of the judge, whatever the slave’s value shall be, you, judge, condemn Numerius Negidius to pay XXX sesterces to Aulus Agerius; if it does not appear so, let him be absolved.” According to the formula, the purpose of the action was twofold.

If the defendant refused to defend his claim in court, the praetor simply handed the item in question over to the plaintiff. The defeated defendant then had to return property with all the fruits and accessories which came into existence after the joinder of the issue (litis contestatio), but not with those that had existed before. The defendant would also be liable for intentional damages caused to the thing before the joinder of the issue as well as for intentional and negligent damages caused to the property after joinder. Roman law allowed possessors in good faith (but generally not possessors in bad faith) to seek compensation for improvements and reimbursement for expenses.

Interdictum quem fundum and actio ad exhibendum

Two complementary remedies served as a preparation of the action for recovery of property (rei vindicatio). The praetor protected the person who wished to recover an immovable thing with an interdictum quem fundum, a special interdict against the possessor of a piece of land who declined to

defend against the rei vindicatio. The action ad exhibendum was correlative to the interdict but in the context of movable things. The purpose of the action was to force the defendant who refused to cooperate in the recovery procedure to show the praetor the item in dispute, which the plaintiff might take into his possession with the permission of the magistrate. The action lay against any kinds of possessors, including those who gave up possession simply to avoid the rei vindicatio. Sometimes, therefore, the action ad exhibendum was not only a preliminary action but a substitute for the rei vindicatio; sometimes, however, the action served to protect other rights short of ownership.

Actio Publiciana

The Publician action was created in the first century bce, probably in 67 bce, by praetor Quintus Publius. It protected the acquirer of a res mancipi by way of traditio rather than the required mancipatio or in iure cessio, when he lost possession before accomplishing the required usucaption. The action contained the legal fiction that the time of usucaption had already passed, and that the plaintiff therefore had become a civil owner. The plaintiff had to prove only that he had acquired the thing under conditions required for usucaption. His good faith was presumed, although this presumption could be rebutted.

The person protected by the Publician action was considered to be a prae­torian or bonitary owner, since he was completely protected by the praetor not only against any holder but even against the true civil owner. If the bonitary owner was sued in a rei vindicatio action by the civil owner, the praetor pro­tected the bonitary owner by granting the special defence that the thing had been sold and delivered to him (exceptio rei venditae et traditae). When the civil owner opposed the actio Publiciana by inserting in the procedural formula the defense called exceptio iusti dominii, the praetor protected the bonitary owner with a counter-defense called replicatio rei venditae et traditae. Suppose that Titius sold and delivered his horse to caius. Later caius lost possession when the horse made its way back to Titius’s farm. Caius could sue Titius with the actio Publiciana. Titius could object that he was the civil owner pleading a defense (exceptio iusti dominii), but caius might reply that Titius sold and delivered the horse to him (exceptio rei venditae et traditae). The defense (exceptio) could be adapted to similar cases (e.g., in case of donation of the horse without mancipation).