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Classification of Roman Private Law
Corporeal & incorporeal |
Public & private |
Movables & immovables |
Res fungibiles & res non fungibiles |
Corporeal = touchable |
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Immovables = land & everything attached |
Res fungibles = replaceable thus generic |
Only corporeal = possessable |
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Opp = specific item |
Real vs. Personal Rights
Real |
Personal |
Relationships between legal subjects and objects |
Relationships between legal subjects |
A right over a thing which is enforceable against the whole world |
A right against a person which is enforceable against a particular person |
Object of the right: thing/property |
Object of the right: a performance by a specific person |
Real rights are transferred through an overt and public act |
Personal rights are transferred through an agreement |
E.g. Ownership |
E.g. Obligations |
Roman Law on Ownership (dominium)
Essentials |
Limitations in the interest of... |
Protection |
Commercium |
Neighbours |
Real action = rei vindicatio |
Property capable of private ownership |
Land |
Appropriate method of acquisition |
Co-ownership |
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Imposed by themselves or predecessors |
Concept changed from early Roman law until the period of Justinian. Roman law eventually recognized ownership (dominum) as the strongest right over the thing and weighed the claims of third parties to the thing against that right.
Acquisition of Ownership
Original |
Derivative |
W/o intervention or dependence |
Transferred |
1. Occupatio |
1. Tradicio (delivery) |
2. Accessio |
3. Specificatio |
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Specificatio
Who became the owner of the new object
Sabinian-Proculian debate:
Sabinians: owner of material
Proculians: maker/creator
Middle view:
Justinian: Reducible new thing = owner of material. Otherwise ownership = maker/creator
Remedies: if the maker acquired ownership in good faith and was in possession (if not, then entitled to the rei vindicatio),
the owner of the materials had no remedy.
However, if the maker acted in bad faith, he could be sued for theft but was
entitled to the new thing. |
The process of creating or bringing into existence a new object (nova species).
Only applied in circumstances where a new thing is creates. Alterations not sufficient.
Accessio
Immovables |
Movables |
Basic rule: Anything that was attached to the land became part of it, since land was regarded as the principle thing |
Identity test: the thing that gave its identity or name to the new or composite things, counted as the principle thing |
Applied to buildings |
Other seldom used alternative tests: financial considerations or the relative size of the joining things |
Harvesting of plants = no effect |
Remedies: the owner of the accessory thing claim the value of his property or the owner of the principle thing not in possession could claim it back with rei vindicatio but had to pay the value of the accessory |
Once plants take root - belongs to owner of land |
However, the mala fide owner lost his proprietary rights. |
Def: Joining together (through human conduct or natural forces) oftwo things that belonged to different owners
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Occupatio
Wild animals |
Abandoned things |
Enemy Property |
Take effective or lasting control |
Owner must have intended to be rid of the property |
Immovables became the property of the state |
Escaped animals = res nullius again... |
Sabinian-Proculian debate |
Movables became property of the person who captured them or the commanding officer |
Unless they had animus revertendi (habit of returning to the owner) |
Explanation: taking possession of things res nulius
Traditio
Delivery |
Intention & iusta causa |
Traditio longa manu - long-handed delivery |
Lawful cause |
Traditio brevi manu - short-handed delivery (transferee already had control) |
What if the parties were mistaken as to the iusta causa? |
Constitutum possessorium - (opposite of traditio brevi manu) transferor agreed to pass ownership of the thing to the transferee, but the former retained temporary control |
Putative mistakes: transferor may have intended a sale, whereas the transferee though he was receiving a gift |
Traditio symbolica - symbolic transfer |
Material mistakes |
The two basic essentials: delivery and the appropriate intent
Nemo plus iurisrule: no one could transfer more rights to another than he himself had
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