Roman Law and Philosophy 2.

Res incorporales- do not have physical existence (rights of servitudes, of action,

inheritance, obligation).

V. THINGS (De Rerum Divisione) Fifth Classification: In its Use

1. Fungible- if it is consumed through its use (wheat, money)
How to treat the Law on Things: 2. Non-fungible- if it cannot be consumed by its use (furniture)
1. Inquire of what divisions things themselves are susceptible
2. Divide the rights over things according to the extent of the rights Sixth Classification: Mobility
3. Treat of the mode in which these rights are acquired 1. Mobiles-
2. Immobiles
A. PROPERTY
Real Right (Jus in Rem)- right which belongs to a person, immediately and absolutely, in a
Things- whatever is capable of being the subject of a right. thing, and which is the same against the whole world.
 Can be forced against any person in the whole world.
First Classification: Religious  Can be transferred readily
1. Res divini juris- subject to divine law and belonged to no one  May be indicated by action in rem or against anyone who contests the right.
2. Res Sacrae, Res Religosae, sanctae
a. Res Sacrae- dedicated to the celestial gods above. Cannot be sold or mortgaged Personal Right (Jus in Personam)- right against a person, a right which gives the
(except in freeing captives, for the poor, or to pay church debts). possessor a power to oblige another person to give or procure, to do or not to do
b. Res Religiosae- dedicated to the infernal gods below (e.g. cemeteries and tombs). something.
c. Res sanctae- things placed under the special protection of the gods by severe  Only a right against a certain party
penalty.  May not be transferred except in certain cases
3. Res Humani Juris-things subject to human law and subject to human ownership:  Action in personam is directed only against a particular defendant on the
a. Res publicae- property belonging to the state and for the use of citizens (e.g. rivers obligation.
and ports).
b. Res privitae- properties capable of being owned by individual persons B. OWNERSHIP (dominium)
 A right of enjoyment or control over a thing unless limited by law.
Second Classification: Patrimony  A perfect and complete property or ownership of a thing.
1. Nostro patrimonio- within our patrimony
2. Extra nostro patrimonium- not capable of private ownership Elements of dominium:
a. Res publicae- public property (rivers, ports) 1. Right to use the thing (jus utendi)
b. Res communes- things common to all mankind (air, water, sea) 2. Right to abuse (jus abutendi)
c. Res univesitatis- properties belonging to corporate bodies (theatres stadia) 3. Right to enjoy the fruits (jus freundi)
i. Universitas- a corporate body created by the state (municipalities, guilds of 4. Right to dispose of the thing (jus disponendi)
different trades). 5. Right to defend the title against anybody and to recover (jus vindicandi
d. Res nullius- things common, such as unoccupied lands, wild animals.
e. Res alicujus- belonging to someone
POSSESSION
 Natural Possession- the mere physical detention or holding of a thing.
Third Classification: Old Law Manicablility
 Civil Possession- the actual or physical detention coupled with the intent to retain
1. Manicable Things (res manicipi)- things that in order to be transferred or
the thing as one’s own.
conveyed, require the formality of manicipum.
 Mancipium- a symbolic sale conducted in the presence of five witnesses and of
Elements of Possession
libripens (balance holder).
2. Res nec manicipi- things which may be transferred without the said formality of 1. Physical (corpus)
mancipium. 2. Intent (animus)

 Note: If the possessor has the physical apprehension of the thing, and the intent of holding the
Fourth Classification: Corporality thing as his own, then he has legal or civil possession. He is protected in his possession against
1. Res corporals- physical things or objects which are tangible (money, slaves, anyone who had no better title trough an interdict given by the praetor.
garment, gold).
MODES OF ACQUIRING OWNERSHIP (dominium)
1. Original Methods of Acquiring Ownership
i. Occupatio- the taking possession of a thing which never had an owner or
had ceased to have one.
Elements:
i. The thing to be acquired is res nullius (has not been appropriated by
another person.
ii. The person acquiring must have physical control (corpus), and the intent
(animus).
 Wild beasts, birds, fish as soon as they are taken by any one, immediately
become the property of the captor. But when it escapes, it recovers its natural
liberty
 Two opinions on wounded animals (check book).
 Bees and birds that inhabit one’s trees
 Fowls and geese are not naturally wild
 Movables taken from the enemy are res nullius.
 Precious stones found on the shore belong to the finder.
 Animals that form the habit of returning to one’s property are his.
ii. Accessio- by the increase or actual gain of one’s property.
i. By natural increase
i. Fructus- fruits of one’s property becomes the owner’s
ii. Alluvion- the gradual addition to the land of the owner by the action
of the water. If sudden, it is avulsion.
iii. Insula in flumine nata- formation of an island in the river. Island
belongs to the owner of the riparian banks. If island in the sea, first
finder.
iv. Beds of rivers which are abandoned by the natural chance of course
of waters- owned by the proprietor of the bank up to the line of the
mid channel.
v. Plantatio- whatever is planted on the land that has taken root is
owned by the owner.
vi. Care and culture of bona fide purchased land.
ii. By an act of man
i. Written characters- accede to the owner of the paper or parchment
on which they are written (poem, history, oration).
 The letters are considered inseparable
ii. Paintings on tables of another- tablet should accede to the painter.
iii. Inaedificatio- when a man builds upon his own ground with the
materials of another, he is considered the owner of the building.
 Superficies solo cedit
 Note: check book for difference scenarios and procedures
iv. Mixture of Things
01 Intentional Mixture- if two owners intentionally mix their
materials, the resulting product shall belong to them in
common. But if unequal parts, the owner of the principal
becomes the owner but must compensate the other. (accessory
follows the principal).
 If the thing can be reduced to its original nature, the thing belongs to
the owner of the materials with the obligation of compensating the
maker of his work.
 If it could no longer be reduced to its former nature, it belongs to the
maker (nova species).
02 Accidental Mixture- same rules apply if the mixture was by
chance.
 Confusio- mixing of liquids
 Commixtio- mixing of solids
2. Derivative Methods of Acquiring Ownership
i. Mancipation- a formal ceremony of transfer of property that are res manicipi
of a symbolic act in the presence of both parties , the one who holds the scales
(libra), and five witnesses (libripens).
ii. Jus jure cessio- a fictitious lawsuit where the transferee claimed before the
praetor to be the owner of a res.
iii. Traditio- mode by which an owner of a corporeal thing transfers to another his
ownership.
Elements of Traditio:
i. The person who transferred it must be the owner
ii. He must place the person to whom he transferred it in legal possession of the
thing
iii. He must transfer the thing with the intention of passing the property in it.
iv. The person to whom it was transferred must receive it with intention to become
the owner
 It is immaterial whether the owner delivers the thing himself or if someone else by his desire.
 The mere with of the owner, without tradition, is sufficient to transfer the property in a thing.
 Things thrown overboard in a storm to lighten a vessel remain the property of the owners as it
is evident that they are not thrown away to get rid of them but only to escape the dangers of
the sea.
iv. Donation(De Donationibus)
 Transferring property by gift.
 “dare” – means the whole property was passed by gift.
 “dono” – expresses the motive
Two Kinds of Donation:
i. Donation mortis causa- donation made in contemplation of death.
 Takes effect only upon the death of the donor
 Recoverable anytime before the death
 If done dies before donor, donation fails
 If donor was insolvent at point of death, implied revocation because there’s nothing to
donate.
ii. Donation inter vibos- takes effect during the lifetime of the donor.
 Donation completed once the donor has manifested his intention either in
writing or not.
 GR: irrevocable. EXPN: when the done seriously injured or attempted to injure the
donor, or when he failed to fulfil the conditions of the gift.
01 Donation ante nuptias- made to take effect and on the condition of
marriage. It precedes the marriage.
 It is a gift from the husband (equivalent to dos)
 Belonged to the wife but managed by the husband.
02 Donation propter nuptias- donation made after the marriage.
v. Thesaurus- buried treasure.
 Found by owner of land in his land or sacred place= his.
 Found by one in the land of another= 50:50
vi. Usucapion- ownership through continuous and uninterrupted possession for a
length of time which eventually ripens into legal dominium.
Requisites of Usucapion:
1. Thing susceptible of being held in dominio (those that are nostro patrimonio).
 Res nullius, stolen property, immovables forcibly seizes and properties left by
persons dying without successors are not included.
2. Possessed ex justa causa (it must have come into the power of the possessor by
some recognized legal mode of acquisition).
3. Possession must be in good faith (bona fide).
 Exceptions:
 Possession over a free person, a thing sacred or religious, or a fugitive
slave.
 Stolen items because the vice of theft remains attached to the res.
 Movables where the seller knows he does not own the thing.
 Note: Usucapion is more readily apparent on things appertaining to the soil (e.g. land vacated by
owner through absence).
 Usuraptio- the interruption of usucapion. How?
 The thing is taken away
 If immovable, owner is expelled from it
 Physical causes preventing possession or occupation
 Falls to enemy hands
 Civil interruption by an action to contest the right
How long?
 10 years for immovables if parties live in the same province
 20 years in different provinces
 3 years for movables (under Justinian rule)
vii. Praescripto- (possession longi temporis)
 Usually referred to provincial lands.
Longisimi temporis- if there is possession for thirty years , whatever vice or obstacle there
might be to the acquisition of the use (theft, violence, or mala fides) , the possessor could
repel actions brought to claim the thing.
 (40 years for ecclesiastical property or property mortgaged in the possession of the debtor)
 If possession or use was interrupted, there is no usupacio.
 The praetor may intervene and create a fiction of law as if possession had never been lost at
anytime.
viii. Adjucatio- order of the court
ix. Lex- special statutes where ownership is transferred.
C. SERVITUDE (under Jura in re aliena)
Right to ownership over thing are divided into:
1. Jura in suare- a right exercised by an individual over his own property.
2. Jura in re aliena- right exercised by an individual over the property of another.
a. Emphyteusis (jus emphyteutecarurn)- the right of enjoying all the fruits and disposing
it at pleasure of the property of another subject to the payment of a yearly rent
(pension or canon) to the owner. Failure to pay 3 years in arrears is ground for
ejectment.
 Both lands and buildings could be the subject.
 The emphyteuta, the beneficiary, could dispose the right over the thing anyway he pleased
(e.g. mortgage it, or create a servitude over it), except that the dominus has a right of pre-
emption.
 He must use the thing properly to prevent deterioration.
b. Superficies- perpetual lease on anything built on land.
c. Servitude- certain portions of the right of ownership separated from the rest, and
enjoyed by persons other than the owner of the thing itself.
Modes of Creation of Servitude:
i. Testament
ii. Agreement of the parties
iii. Judicial decree for the division of inheritance
iv. Law
v. Continuous possession of the right
vi. Transfer of ownership accompanied by reservation of a servitude
Classifications of Servitude:
i. According to manner of exercise
a. Positive- the person entitled to the right could do something over the servient
property (e.g. “right of way” or iter).
b. Negative- the person entitled to the right could prohnit the owner of the servient
property from doing something which he could perform without servitude. (e.g.
easement of light and view.
ii. According to the nature of the right of the service
a. Praedial (Real Servitude)- a right charged on an estate for the benefit of one estate Other rules for Usufruct:
belonging to another proprietor.  Usufructury obliged to give a security on entering on the exercise of his right to ensure
 Rural (rustic)- those which are enjoyed by one estate in favour of another care of a bonus pater familias.
estate.  Usufructury also applicable to beasts of burden, and everything else except things which
are consumed (but later on, law permitted it).
- May be used occassionaly only.
 Usufructury over a flock required dead flock to be replaced.
- Termination of the right: lost by nonuser for the lapse of time.

Important Rural Servitudes Termination of Praedial Servitude:

 Iter- right of passage for a man on foot or horseback over the servient i. Consolidatio or the merger in the same person of the owenrhship of both the
estate. dominant and the servient tenements
 Actus- the right of driving beasts or vehicles. ii. Nonuse or abandonment of the right
 Via- the right of passage of driving beasts, vehicles, dragging stones over iii. Destruction of the servient property
timber and of walking. iv. Release or surrender of the right of the dominant tenement
 Aquaeductus- the right to conduct water through the land of another. v. Expiration period
 Urban- those established in towns or cities and must be used continuously.
- The right over which the property is exercised should be contiguous. Termination of Usufructury:
- Termination of the right: It is lost by nonuser if the servient owner did some act i. Death or capitis diminution
inconsistent with the servitude, and the dominant owner acquiesced in the act. ii. Non utendo per modum et tempus (nonuse)
iii. Domino cedatur (release or surrender)
Important Urban Servitudes: iv. Consolidatio
 Oneris ferendi- right to place the weight of a house on the adjoining house. v. Consumption, Perishing, Substantial Alteration
 Tigni immittendi- right to insert a beam thru or upon a neighbour’s wall. vi. Expiration of period
 Stillicidii vel fluminis recipiendi- right to let rain fall from one’s roof upon
the roof of adjacent land of neighbour. Usu- the use and enjoyment of the property of another to the extend essential for the
 Altius non tollendi- right to prevent an adjoining owner from erecting needs of the usuary and his family.
edifices which would impair light and view. - Usuary may use the thing, but not dispose of its fruits.
- Habitatio- the use of the house to the extent of inhabiting it for himself and his family.
Protection of Right of View:
- Ne luminibus officiator- prevented the res serviens from doing anything, D. PLEDGE (jus pignoris)- right to given to the creditor over a thing belonging to
whether bulding, planting or any other means, whereby the light was another in order to secure the payment of a debt.
intercepted from the house.  Sale of the pledged things should be executed within 2 years, otherwise creditor becomes the
- No prospectui offendatur- prevented a neighbour from doing anything owner.
 Preference of pledge for the first person pledged to.
that would make the view from the house of the res dominans less pleasant
and open.
- Lus lumindean- obliged a neighbour in building a wall to leave apertures E. MORTGAGE (Hypotheca)- like pledge, but debtor retains the possession of the thing
through which we can look beyond. given as security for an obligation.
 Special privileges are attached to hypotheca of the fiscus, or imperial treasury for the payment
of taxes, and that of the wife for her dos.
b. Personal Servitude- the right attached to the person entitled to it.  Creditor had a right to bring a real action (action quasi-serviana) against any 3rd person who
 Usufruct (usufructus or de usufructu)- the right to use and enjoy things unlawfully detained the thing delivered.
movable or immovable belonging to others, provided the substance of the
things used remains unimpaired. Power to alienate property belonging to another person
GR: power belongs to the owner.
Dual Rights of the Usufructuary (the person to whom the usufructis was given): EXPN:
i. Jus utendi- to make every possible use of the thing apart from consuming it. 1. Creditors in relation to things pledged/mortgaged.
ii. Jus freundi- taking all of the fruits of the thing. 2. Tutors/Curators in relation to goods of pupils or those committed to their care.
 He may sell, let or give his right to take the fruits to another.
 Fructus civiles- the profits derived from the fruits. GR: No one can acquire property through another person.