2 Types of dominion over things Ulpianus:Nihil commune habet proprietas cum possessione.Possession and ownership are two different things.
3 Types of dominion over things Factual dominion: possession (its variations) wielding (pure factual dominion)Legal dominion: ownership and numerous rights in rem (easement, pledge, surface right, perpetual usufruc)
4 Factual dominion - possesion corpus – physial dominion over a thinganimus – intention to retain the thing: for oneself or for someone else.
5 Types of possession (1)possessio civilis – civil possession, generally given legal possession in various manners.possessio naturalis (detentio) – natural possession (wielding), only in exceptional circumstances granted legal protection.
6 Types of possession (2)possessio bonae fidei – possession in good faith, the conviction that something belongs to us.possessio malae fidei – possession in bad faith, the conviction that somethig does not belong to us.
7 Types of possession (3)possessio iustabased on legal normspossessio iniusta (vi, clam, precario)- not based on legal norms
8 Particular types of possession possessio ad interdicta – possession protected by praetorian interdictioncondition: animus rem sibi habendi – the intention to keep the thing for oneself.quasi possessio – possession "as if"- e.g. Possession of an interitance, as an estate is an individual non-material thing, regardless of the number of physical things and claims contained in it.
9 Acquiring positionRule: corpore et animo, simultaneously handing over the physical thing and having the desire to transfer possession.Exceptions (discussed on the next slides):constitutum possessoriumtraditio brevi manu
10 Acquiring possession II Exception (from the previous slide):constitutum possessoriumTransfer of possession on the basis of an understanding, in which the previous owner-like possessor (e.g. the owner of the thing) keeps the thing in his dominion as a dependent possessor or wielder on the basis of a legal relationship (e.g. rental contract), which the parties establish jointly.
11 Acquiring possession III Exception (from the previous slide):traditio brevi manuTransfer of owner-like possession to the dependent possessor, or to the wielder, on the sole basis of a contract. For example, when the owner of a house sells it to the person currently leasing it.
12 Protection of possession Interdicta retinendae possessionisServed to protect current possession which was being interrupted.Interdicta recuperandae possessionisServed to restore possession after it was lost.
13 Interdicta retinendae possessionis 1. Interdictum uti possidetis– concerned real property, the rightful possessor at the moment of the interdict’s issuance was victorious.2. Interdictum utrubi– concerned moveables, the rightful possessor with the longest period of possession over the preceding year was victorious.
14 Interdicta recuperandae possessionis (1) 1. Interdictum unde vi– valid for one year from dispossession by force.2. Interdictum de vi armata– no limitation for someone dispossessed by armed force.
15 Interdicta recuperandae possessionis (2) 3. Interdictum de precario– could be enforced against a recalcitrant possessor who was obliged to return a thing and failed to do so.4. Interdictum quod vi aut clam– could be enforced against the possessor of land acting in secret and with force, e.g. one who cut down a tree.
16 The concept of ownership (Full dominion over a thing) No general Roman definitionThe only general description is found in Justinian’s Institutions:Plena in re potestas(Full dominion over a thing)
17 The concept of ownership (2) Distinguishing factors:Protection of possession via actiones in rem.Actiones in rem were effective erga omnes, meaning including individuals with whom the owner was not linked by any legal realtionship.
18 The substance of ownership (1) Roman jurists understood the substance of the right of ownership intuitively and described it causistically.In the Middle Ages, a general and abstract enumeration of the owner’s rights was developed.
19 The rights of the owner Ius possidendi – right to possess the thing Ius utendi – right to use the thingIus abutendi – right to use the thing upIus fruendi – right to derive benefits from the thingIus disponendi – right to dispose legally of the thing
20 Types of full legal dominion over things in the Roman state Dominium ex iure QuiritiumState of res in bonis haberePossessio et usufructusProperty of LatinsProperty of peregrines
21 Limitations on the right of ownership in public law SanitaryCommunicationConstructionPossibility to dispossess for the public good
22 Limitations on the right of ownership in private law Law of neighboursLimited property rightsObligatory relationships
23 Joint ownershipOnly in fractions- Every owner was entitled to defined, abstract fractional ownership of the entire thing, e.g. ¼.- Potential division quoad usum, meaning for use
24 Division of joint ownership Actio communi dividundo – action used for establishing joint ownership.Actio familiae erciscundae – action used in probate matters.Joint owners could decide themselves about a division of joint ownership.In case of a dispute, a court could decide about the division of jointly-owned property, such as parcels of land, or could order payments to the other joint owners.
25 Secondary acquisition of ownership Mancipatio – formal ceremony transferring ownership before 5 witnesses and weigher (libripens).In iure cessio – formal transfer of ownership before a civil servant.Traditio – informal transfer of ownership in objects of lesser value.During the later imperial period (dominate) the first two forms disappeared, and the only way of transferring ownership was traditio.
26 Primary acquisition of ownership Usucapio – acquisitive prescription, meaning the acquisition of ownership in a thing with the passage of time (sometimes classified as a seperate way of acquiring ownership)Occupatio – appropriation (e.g. wild animals)Accessio - joiningSpecificatio - transformationFructuum perceptio – acquisition of benefitsThesauri inventio – finding a treasure
27 Protection of right of ownership Rei vindicatio – an action demanding the return of stolen property.Actio negatoria – an action demanding the cessation of violations of ownership.Actio Publiciana – an action by an informal possessor in good faith demanding the return of the owned thing.
28 Rights in the property of others ServitudesEmphyteusisRight of the surface (Superficies)Pledge
29 servitutes praediorum rusticorum, Servitudes on rural lands iter - right of passage on foot through a neighbour’s land• actus – right to herd animalsvia – right of way encompassing the aboveaquae ductus – right to conduct a waterwayaquae haustus – right to draw water
30 servitutes praediorum urbanorum Servitudes on urban lands servitus oneris ferendiservitus tigni immitendiservitus stillicidiiservitus altius non tollendiservitus luminisservitus fumi immittendi
31 servitutes personarum Personal servitudesususfructus – usufructusus - usagehabitatio – right of inhabitationoperae servorum et animalium – right to use the labour of others’ slaves and animals
32 General principles of servitudes servitus in faciendo consistere nequit – a servitude can not consist of activityservitus servitutis esse non potest – a servitude can not be set up on an easementservitutibus civiliter utendum est – servitudes should be used sparinglynemini res sua servit – one can not have a servitude on one’s own property
33 Specific rules concerning servitudes Personal servitudes ended not later than the death of the entitled personEasements (servitudes in land) should also meet additional conditions:utilitas – useful for the neighbourvicinitas – immediate vicinityperpetua causa – permanent need
34 Perpetual leasehold - origins Ius in agro vectigali – Roman leasehold of public landsEmphyteusis – from the Hellenic law, resulting from private law actions such as contract, testamentEmperor Zenon in 480 decided about the seperateness of institutional emphyteusis from other property rights and obligations
35 Perpetual leasehold – establishment Two possibilitiesContractus emphyteuticarius – a special emphyteutical contractTestamentum - testament
36 Perpetual leasehold – rights of the leaseholder To collect benefits at the moment of seperation from the superior thingPossibility to decide independently about changes in crop typesUse of actions designed to protect possessionRight to dispose of leasehold
37 Permanent leasehold – duties of the leaseholder Annual rent paid to ownerPayment of all taxes burdening the landMaintaining land in good conditionInforming owner of intention to dispose of leaseholdPayment of laudemium upon effective disposal of leasehold
38 Permanent leasehold – expieration Destruction of landConvergence of leasehold with ownership (e.g. Owner exercises right of pre-emption)Removal of leaseholder (e.g. for failure to pay rent for three successive years)
39 SuperficiesThis right did not infringe the principle superficies solo cedit (what is permanently connected to the ground belongs to the owner of the ground)Protected through a special interdict (interdictum de superficiebus)Only in Justinian law was the superficiary granted actiones in rem
40 Pledge – essenceReal securrity for a debtAccessorialSecured only a specified receivable (exception: pignus Gordianum)
41 Pledge – historical development Fiducia – fiduciary pledge, associated with transfer of pledged item to the creditorPignus – pledge in which the creditor only wields the pledged item; presently available in pawn shopsHypotheca – contractual pledge, the item remained in the dominion of the debtor
42 FiduciaFiduciary contract transfering ownership of a thingIn archaic law there was no civil protection for a fiduciary debtorIn later law, the debtor was granted a seperate right of action, actio fiduciae directa
43 PignusThis form of pledge appeared at the beginning of the republicConsisted in the pledgee being the wielder of the itemThe property right arose out of a contract with the same name
44 Additional covenants which could be concluded in the case of a pledge Lex commissoria, forfeiture clause – the object of the pledge became the property of the creditor in the event of failure to pay the debtPactum de vendendo – a contract for sale of the item by the lender if the debtor failed to pay the debt, but settlement was requiredAntichresis – a contract on collecting benefits from the pledge by the creditor
45 Hypotheca Origins in the 2nd century BC Milestone at the turn of the 2nd and 1st centuries BC when praetor Salvianus introduced a special possession interdict, interdictum SalvianumIn the mid-1st century the praetor Servius introduced a separate actio in rem, called actio ServianaIn the Roman Empire there was no special land register, only Egypt had a proper land register.