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TEXT 6. ROMAN LAW: THE LAW OF PROPERTY AND POSSESSION
In Roman law (today as well as in Roman times), both land and movable property could be owned absolutely by individuals. This conception of absolute ownership (dominium) is characteristically Roman, as opposed to the relative idea of ownership as the better right to possession that underlies the Germanic systems and English law.
Mancipatio, or formal transfer of property, involved a ceremonial conveyance needing for its accomplishment the presence of the transferor and transferee, five witnesses (adult male Roman citizens), a pair of scales, a man to hold them, and an ingot of copper or bronze. The transferee grasped the object being transferred and said, “I assert that this thing is mine by Quiritarian [Roman] law; and let it have been bought by me with this piece of copper and these copper scales.” He then struck the scales with the ingot, which he handed to the transferor “by way of price.”
In jure cessio was a conveyance in the form of a lawsuit. The transferee claimed before the magistrate that the thing was his, and the transferor, who was the defendant, admitted the claim. The magistrate then adjudged the thing to the transferee. (The sham-lawsuit theory, however, is not acceptable to all modern scholars, principally because the judgment of ownership was valid against any possible private claimant, not merely against the defendant, as in a true lawsuit.)
Usucapio referred to ownership acquired by length of possession. In early Roman law, two years of continuous possession established title in the case of land, one year in the case of movables. In the developed law, possession must have begun justifiably in good faith, and the thing must not have been stolen (even though the possessor himself may have been innocent of the theft) or acquired by violence.
In terms of occupatio, ownerless things that were susceptible to private ownership (excluding such things as temples) became the property of the first person to take possession of them. This applied to things such as wild animals and islands arising in the sea. In some views, it also applied to abandoned articles.
Accessio worked in this manner: if an accessory thing belonging to A was joined to a principal one belonging to B, the ownership in the whole went to B. For example, if A’s purple were used to dye B’s cloth, the dyed cloth belonged wholly to B. By far the most important application of this rule asserted that whatever is built on land becomes part of the land and cannot be separately owned.
Specificatio was somewhat different. If A made a thing out of material belonging to B, one school of thought held that ownership went to A, and another held that it remained with B. Justinian adopted a “middle opinion”: B retained ownership if reconversion to the original condition was possible (a bronze vase could be melted down); A obtained ownership if it was not (wine cannot be reconverted into grapes).
According to thesauri inventio, or treasure trove, the final rule was that if something was found by a man on his own land, it went to him; if it was found on the land of another, half went to the finder, half to the landowner.
Traditio was the simple delivery of possession with the intention of passing ownership and was the method of conveyance of the jus gentium. If A sold and merely delivered a slave to B, under the jus civile, A remained the owner of the slave until a specified length of time had elapsed. The praetors, however, devised procedural methods of protecting B’s possession in such a way that A’s title became valueless, and B was said to own the thing in bonis. This was a remarkable triumph for informality in the granting of title. From the phrase in bonis, later writers coined the expression “bonitary ownership.” Justinian abolished the theoretical distinction between civil and bonitary ownership.
The ordinary leaseholder had no protection beyond a contractual right against a landlord and could not assign tenancy. But there were certain kinds of tenure that did provide the tenant protection and that were assignable: agricultural and building leases granted for a long term or in perpetuity often enabled leaseholders to enjoy rights hardly distinguishable from ownership.
There were also servitudes, in which one person enjoyed certain rights in property owned by another. Rights of way and water rights were rustic servitudes; rights to light or to view were urban servitudes. Ususfructus was the right to use and take the fruits (such as crops) of a thing and corresponded to the modern notion of life interest. A more restricted right, likewise not extending beyond the life of the holder, usus permitted merely the use of a thing; thus, a person could live in a house but could not let it, as that would be equivalent to “taking the fruits.”
Since ownership was absolute, it was sharply distinguished from possession, which the civil law did not protect as such. Any owner wishing to interfere with an existing possessor, however, had to bring legal action to prove his title. If he interfered on his own authority, the praetor would see that the original state of affairs was restored before adjudicating the title.