1. Property Law

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 thing
animus – 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 iusta
based on legal norms
possessio iniusta (vi, clam, precario)
- not based on legal norms

8. Particular types of possession
possessio ad interdicta – possession protected by praetorian interdiction
condition: 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 position
Rule: corpore et animo, simultaneously handing over the physical thing and having the desire to transfer possession.
Exceptions (discussed on the next slides):
constitutum possessorium
traditio brevi manu

10. Acquiring possession II
Exception (from the previous slide):
constitutum possessorium
Transfer 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 manu
Transfer 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 possessionis
Served to protect current possession which was being interrupted.
Interdicta recuperandae possessionis
Served 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 definition
The 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 thing
Ius abutendi – right to use the thing up
Ius fruendi – right to derive benefits from the thing
Ius disponendi – right to dispose legally of the thing

20. Types of full legal dominion over things in the Roman state
Dominium ex iure Quiritium
State of res in bonis habere
Possessio et usufructus
Property of Latins
Property of peregrines

21. Limitations on the right of ownership in public law
Sanitary
Communication
Construction
Possibility to dispossess for the public good

22. Limitations on the right of ownership in private law
Law of neighbours
Limited property rights
Obligatory relationships

23. Joint ownership
Only 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 - joining
Specificatio - transformation
Fructuum perceptio – acquisition of benefits
Thesauri 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
Servitudes
Emphyteusis
Right 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 animals
via – right of way encompassing the above
aquae ductus – right to conduct a waterway
aquae haustus – right to draw water

30. servitutes praediorum urbanorum Servitudes on urban lands
servitus oneris ferendi
servitus tigni immitendi
servitus stillicidii
servitus altius non tollendi
servitus luminis
servitus fumi immittendi

31. servitutes personarum
Personal servitudes
ususfructus – usufruct
usus - usage
habitatio – right of inhabitation
operae 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 activity
servitus servitutis esse non potest – a servitude can not be set up on an easement
servitutibus civiliter utendum est – servitudes should be used sparingly
nemini 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 person
Easements (servitudes in land) should also meet additional conditions:
utilitas – useful for the neighbour
vicinitas – immediate vicinity
perpetua causa – permanent need

34. Perpetual leasehold - origins
Ius in agro vectigali – Roman leasehold of public lands
Emphyteusis – from the Hellenic law, resulting from private law actions such as contract, testament
Emperor Zenon in 480 decided about the seperateness of institutional emphyteusis from other property rights and obligations

35. Perpetual leasehold – establishment
Two possibilities
Contractus emphyteuticarius – a special emphyteutical contract
Testamentum - testament

36. Perpetual leasehold – rights of the leaseholder
To collect benefits at the moment of seperation from the superior thing
Possibility to decide independently about changes in crop types
Use of actions designed to protect possession
Right to dispose of leasehold

37. Permanent leasehold – duties of the leaseholder
Annual rent paid to owner
Payment of all taxes burdening the land
Maintaining land in good condition
Informing owner of intention to dispose of leasehold
Payment of laudemium upon effective disposal of leasehold

38. Permanent leasehold – expieration
Destruction of land
Convergence 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. Superficies
This 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 – essence
Real securrity for a debt
Accessorial
Secured only a specified receivable (exception: pignus Gordianum)

41. Pledge – historical development
Fiducia – fiduciary pledge, associated with transfer of pledged item to the creditor
Pignus – pledge in which the creditor only wields the pledged item; presently available in pawn shops
Hypotheca – contractual pledge, the item remained in the dominion of the debtor

42. Fiducia
Fiduciary contract transfering ownership of a thing
In archaic law there was no civil protection for a fiduciary debtor
In later law, the debtor was granted a seperate right of action, actio fiduciae directa

43. Pignus
This form of pledge appeared at the beginning of the republic
Consisted in the pledgee being the wielder of the item
The 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 debt
Pactum de vendendo – a contract for sale of the item by the lender if the debtor failed to pay the debt, but settlement was required
Antichresis – 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 Salvianum
In the mid-1st century the praetor Servius introduced a separate actio in rem, called actio Serviana
In the Roman Empire there was no special land register, only Egypt had a proper land register.