Property Flashcards

Question

What does Paul say about corpus and animus? | In possession

Answer 1

* “one acquires possession by an act of the mind and body” * “now we take possession physically and mentally, not mentally alone or physically alone”

Answer 2

A ritual involving a piece of copper and a scale, 5 witnesses and both parties had to be present, the property (or a part of it) had to be present also --> this legally transferred ownership from transferer to transferee (G. 2.22)

Answer 3

* Res mancipi= property requiring formal transfer * Res nec mancipi= property not requiring formal transfer * G.2.14

Answer 4

1. Working animals: jurists disagree, some think they are property from birth, while others think they only become res mancipi once they are broken in for work (G. 2.15) 2. Wild animals are always res nec mancipi regardless of how they are trained because at the time of division of things, there was no mention of wild animals (G. 2.16)

Answer 5

Justinian abolished the distinction between res mancipi and res nec mancipi meaning that mancipatio no longer existed

Answer 6

Mancipatio was usually preferred in practice because it could be carried out privately before a witness without the need for a magistrate (G. 2.25)

Answer 7

Gaius: * G. 2.19: It was used for res nec mancipi and the property must have been corporeal * G. 2.20: when corporeal res nec mancipi is delivered for a lawful reason (sale, gift) full legal ownership passes to the receiver Justinian: * Elevates the status of traditio as he abolishes mancipatio * J. 2.1.41: ownership does not pass on delivery alone until the price is paid or secured * J. 2.1.42: the property can be delivered on behalf of the owner, it does not need to be himself * J 2.1.44: ownership can sometimes pass without physical delivery where the property is already in the recipient’s possession (e.g. a lessee)

Answer 8

A person became owner of property through possession/ holding of it for a certain period of time- those who benefitted from this were often people who had acquired property innocently but lacked dominium due to some flaw in their transfer * Gaius: 1 year for moveables, 2 years for immovables * Justinian: 3 years for moveables, 10-20 years for immoveables

Answer 9

G. 2.46: provincial land cannot be acquired by usucapio because it cannot be privately owned under Roman civil law

Answer 10

G. 2.48: usucapio does not apply to things that cannot be privately owned

Answer 11

G. 2.49: stolen goods cannot be acquired through usucapio, only property acquired in good faith

Answer 12

1. human vs divine things 2. public vs private property 3. incorporeal vs corporeal things 4. moveables vs imoveables 5. fungibles vs non-fungibles

Answer 13

Gaius’ primary division of things was those subject to human law and those subject to divine law (G. 2.2) * Things subject to divine law: sacred and religious things * Things subject to human law: within this there is the division of public and private (see below) (G. 2.10)

Answer 14

G.2.10-11 - public property belongs to no one, but belongs to the whole community - private property is the property of an individual

Answer 15

G. 2.12-14 * Corporeal= tangible e.g. land, slave, gold * Incorporeal= things that are not tangible e.g. inheritence

Answer 16

This kind of classification of property was “not as important in Roman law as later on in medieval law”- Du Plessis Immovables are land and moveables are anything else that can be privately owned * Further distinction within land: * Italic land= land south of the river Po, considered res mancipi * Provincial land= outside of Italy, considered res nec mancipi Buckland and McNair: “comparitive insignificance in Roman law of the distinction between land and other property”- in comparison to other legal systems such as early English law

Answer 17

* Fungibles= things that exist primarily in quantities, rather than as separate entities e.g. money and grain- normally consumed through use * Non-fungibles= things which had a separate identity and a degree of permanence, e.g. a book, land, chariot--> this distinction is particularly important in contract

Answer 18

1. Res communes 2. Res publicae 3. Res universitatis 4. Res nullis 5. The seashore

Answer 19

Thing in common to all people e.g. air Roman law recognised a right of enjoyment and unlawful interference could trigger legal action

Answer 20

Things intended for public use but owned by corporate public bodies e.g. theatres, parks

Answer 21

Things that belonged to the Roman state e.g. roads These were governed by public law

Answer 22

Things belonging to no one, eg. Wild animals, abandoned property Some were permanently excluded from legal ownership but some could be acquired through occupatio

Answer 23

Generally open to all, not privately owned, but limited private use (e.g. building) could be authorised and structures could become private property --> demonstrates that Roman classifications were not always rigid and often depended on use

Answer 24

G. 2.66- 68 A way in which ownership could arise- things that previously belonged to no one can be acquired through occupation e.g. all things captured on land, in the sea, and in the air * A wild animal/bird becomes property as soon as it is captured, but if it escapes it regains its freedom * Animals which regularly leave and return are considered property for as long as they continue to return

Answer 25

1. Legal debate surrounding wounded animals: some jurists thought a wounded animal became the hunter’s property as long as he continued to pursue it, others thought ownership only arose upon capture 2. Birds/ bees resting on your tree are not your property 3. Non- wild animals such as fowls and geese are still your property even if they have escaped (unlike wild animals) 4. Precious stones/ gems found on the seashore become the property of the finder

Answer 26

* Islands formed in the sea (rare) become the property of the first occupant because it prevously belonged to no-one * Islands formed in a river: if it is in the middle then it belongs equally to those in possession of the lands along each side of the river, if the island is nearer to one side than the other then it belongs to those who own the property of that side of the bank (J. 2.1.22)

Answer 27

Treasure trove= hidden money or valuable objects whose owner is unknown or forgotten, making it ownerless Emperor Hadrian’s rule: J. 2.1.39 * A person who finds treasure on his own land keeps it all, the same applies if it is found by chance in a sacred or religious place * If treasure is found by chance on someone else’s land it is divided equally between the finder and landowner * If treasure is found on imperial, public or city land then it is divided equally between the finder and the emperor (or the treasury/ city)

Answer 28

Issue: who owns a new thing made from another person's materials?

Answer 29

Justinian (J. 2.1.25) - Compromise rule- based on whether the new thing can be undone- if it can be undone then the owner of the materials remains the owner, but if it cannot be reduced back to its original materials then the maker becomes the owner - e.g. wine cannot be turned back into grapes so the maker would own the wine - If the maker used some of his own materials and some of anothers, then the maker is the owner because he has contributed to both labour and material - This approach is practical (evidence that Justinian prioritised a pragmatic approach to law)

Answer 30

Gaius (G.2.79) - When someone transforms another’s materials, some jurists held that ownership remains with the owner, while the opposing jurists argued that ownership belongs to the maker of the new thing - Despite this, the owner of the materials is protected, since he can bring an action for theft and a personal action for value (condictio) against the person who took and used his materials

Answer 31

J. 2.1.35- 37 - A good faith possessor (e.g. usufructuary) of land keeps the produce he has gathered even if the owner later reclaims the lan - A bad faith possessor must return all land and all produce including what has already been consumed - Usufruct= A owns the land but they allow B to live, farm and keep crops on the land, A remains the owner and will get the land back when the usufruct ends - A person with a usufruct does not own the produce until it is actually gathered; if he dies before harvesting, the produce belongs to the landowner, not the usufruct’s heir

Answer 32

Justinian (J. 2.1.27) When materials belonging to two different persons are mixed together, the resulting thing becomes their common property. This is true whether the mixing is done with the owners’ consent or happens by accident, and whether the materials are of the same kind or of different kinds that form a new substance, such as wine mixed with honey or gold mixed with silver.

Answer 33

Both say: land added gradually by a river (alluvion) belongs to the landowner, but land suddenly washed away remains with its original owner

Answer 34

Gaius: Buildings, plants once rooted, and crops sown on another’s land become the landowner’s property by accession

Answer 35

* Building with another’s materials on your own land: The building belongs to the landowner; the material owner keeps ownership of the materials but cannot demand their removal, only double their value, unless the building is destroyed * Building with your own materials on another’s land: The building belongs to the landowner; the builder loses ownership of the materials if he knowingly built on another’s land, but a good-faith buildermay raise a plea of fraud if uncompensated * Writing on an accessory always belongs to the owner of the accessory but a painting on another’s material will always belong to the painter

Answer 36

J.2.1.27 When materials belonging to two different persons are mixed together, the resulting thing becomes their common property. This is true whether the mixing is done with the owners’ consent or happens by accident, and whether the materials are of the same kind or of different kinds that form a new substance, such as wine mixed with honey or gold mixed with silver

Answer 37

* Proprietary right involving the use of another’s property e.g. right of way * G.2.22-39

Answer 38

Servient property: subject to a burden due to the servitude Dominant property: benefits from the servitude

Answer 39

1. no servitude over your own property 2. servitudes could not be possessed 3. servitudes must be beneficial 4. servitudes must be exercised reasonably 5. servitudes could not impose active duties

Answer 40

A servitude was a right relating to another person’s property, so one cannot be the beneficiary of a servitude over their own property Servitudes cease if the beneficary acquired the servient land (extinguished by merger)

Answer 41

Incorporeal rights so cannot be possessed, but they can be enjoyed Protected by interdicts which were modifed versions of the possessory ones

Answer 42

They had to materially benefit the person entitled to the servitude, they couldn't be purely to upset or irritate the servient owner However, a servitude could be valid id even if it did not benefit the person entitled, providing it had some economic purpose

Answer 43

“servitudes constituted a serious restriction of the ownership of the servient owner”--> therefore they had to be exercised in a reasonable manner

Answer 44

Servitudes were negative in content, the servient owner did not need to do anything, but had to refrain from doing things EXCEPTION: if neighbours share a common wall, they both had a duty to protect the wall, by keeping his side of the wall in good condition

Answer 45

* They are rights that a person has by virtue of ownership of land (dominant tenement) over the land of another (servient tenement)--> the rights are attached to the land, not the person * They ran with the land- so would burden future owners

Answer 46

Concerned with the use of a building Examples include: the rights to... * Build higher, obstructing a neighbour’s light * Prevent such building * Support from a common wall Servitudes such as the right to build higher gave rise to potential counter-servitudes (the right to prevent such building)

Answer 47

Concerned with the use of land 4 types: 1. Iter: the right to go on foot and walk 2. Actus: the right to drive a beast of burden or a vehicle 3. Via: the right to go on foot, to drice and to walk 4. Aquae ductus: right to channel water across another’s land These predate the twelve tables All four were res mancipi and were concerned with the use of land for a specific purpose

Answer 48

Person-->land * Servitudes attached to an individual * They do not pass to heirs * They are limited in duration

Answer 49

1. usufruct 2. usus 3. habitatio 4. service of slaves and animals

Answer 50

* Right to use property and take its fruits without damaging its substance, the usufructuary has a duty to maintain the property without fundamental alterations * Fruits include natural fruits (crops) and civil fruits (rent, income)- the usufructuary could let or sell the enjoyment but not transfer the usufruct itself * Exclusion to the rules of fruits: the child of a female slave was not considered ‘fruits’ therefore the child was the property of the owner of the slave not the usufructuary * The offspring of animals were possessed by the usufructuary

Answer 51

Right to use property, cannot take fruits, cannot sell or let the enjoyment, similar duties to usufruct

Answer 52

Right to live in a house for life, could be let out, created only by will eventually be recognised as a separate servitude

Answer 53

Right to use labour slaves or animal, a specialised form of usus, created only by will

Answer 54

* mancipatio * cessio * deductio * will * adjudicatio * pact and stipulation * usucapio

Answer 55

Used for for rustic praedial servitudes as they were res mancipi

Answer 56

Used for all praedial servitudes, including res mancipi

Answer 57

Occured if upon transfer of the land by mancipatio or cessio, the transferor reserved for himself a servitude over the transferred land in favour of the land that he retained

Answer 58

A testor could leave his land by will subject to a servitude in favour of an adjacent oner, creation of praedial servitudes by legacy became quite common

Answer 59

Judge decides on the division of common property and decides that a servitude should run in favour of part of the property

Answer 60

Originally just used for provincial land, the praetors were prepared to treat such an agreement as sufficient to create a servitude--> after the abolition of the distinction between provincial and italic land, this became the most common method of creating servitudes

Answer 61

In early (pre-classical) Roman law, servitudes could be acquired through usucapio, this was prohibited in Republic then brought bac in the late classical period when the uninterrupted exercise of a ‘right’ for ten years became evidence of the right’s existence

Answer 62

Grant through legacy was the most frequent method of creation * It is the only method for habitatio and use of slaves and animals * However, usufruct and usus could be created through any of the methods a-g

Answer 63

1. **Actio confessoria**= most common method of asserting entitlement to a servitude (modified version of vindicatio) * The servient tenement owner could bring the actio negatoria if he wished to disprove the existence of a servitude * For both actions, recovery for financial loss was possible 2. **Praetorian interdicts**= issued by praetors, these protected the person who was exercising the servitude

Answer 64

* Destruction: occurred if either tenement was destroyed, or underwent fundamental change * Non-use: praedial servitude was lost if it was not exercised for two years, Justinian extended this period to ten years if they lived in the same province and twenty years if they did not * Merger: when the dominant and servient tenements were acquired by the same owner * Cessio: the right to a servitude was lost if it was formally ceded by the dominant tenement owner, and rustic servitudes could be renounced by a formal conveyance - Later on, praedial servitudes could be renounced either expressly or impliedly * Abandonment: if the servient tenement abandoned his property, nothing changed in principle, the property remained burdened. If the dominant tenement as abandoned, the servitude was not terminated, but it could constitute non-use

Answer 65

* Death: death of the holder of the servitude * Expiry of term: besides habitatio, personal servitudes could be granted for less than life, therefore, when the term was up they were terminated * Loss of status: loss of an individuals status ended all personal servitudes * Non-use: usufruct and usus (not habitatio and services of slaves and animals) could be lost through non-use (2 years for land, 1 year for movables) --> justinian made it 3 years for moveables, 10-20 years for land depending on whether the parties resided in the same province --> they could also be ended in ways similar to that of praedial servitudes e.g. merger ends a usufruct

Answer 66

An honest belief at the time of acquisition, that the transferor had title--> they are the possessor but not owner - if the appropriate time passes, they could acquire ownership through usucapio

Answer 67

Someone who has recieved the thing through the wrong method of conveyance e.g. received res mancipi without mancipatio - they can acquire ownership through usucapio

Property Flashcards

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