Property Law
Types of dominion over things Ulpianus:
Nihil commune habet proprietas cum possessione.
Possession and ownership are two
different things.
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)
Factual dominion - possesion
• corpus – physial dominion over a thing
• animus – intention to retain the thing:
for oneself or for someone else.
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.
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.
Types of possession (3)
• possessio iusta
- based on legal norms
• possessio iniusta (vi, clam, precario)
- not based on legal norms
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.
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
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.
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.
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.
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.
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.
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.
The concept of ownership
• No general Roman definition
• The only general description is found in Justinian’s Institutions:
Plena in re potestas
(Full dominion over a thing)
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.
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.
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
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
Limitations on the right of ownership in public law
• Sanitary
• Communication
• Construction
• Possibility to dispossess for the public
good
Limitations on the right of ownership in private law
• Law of neighbours
• Limited property rights
• Obligatory relationships
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
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.
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.
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
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.
Rights in the property of others
• Servitudes
• Emphyteusis
• Right of the surface (Superficies)
• Pledge
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
servitutes praediorum urbanorum Servitudes on urban lands
• servitus oneris ferendi
• servitus tigni immitendi
• servitus stillicidii
• servitus altius non tollendi
• servitus luminis
• servitus fumi immittendi
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
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
