Chapter 6 Revision sheet

Interests in property

Instructions:

This chapter should be revised in conjunction with chapter 7. The two chapters provide an integrated overview of the Roman law of property in all its complexity.

Aims:

This chapter focuses in greater detail on the various factual and legal interests that one could acquire in property under Roman law. To that end, it is vitally important that you appreciate and are able to articulate the distinction between ownership and possession in Roman law. Furthermore, reflect carefully on the different types of classification of property in Roman law. Why did the Roman jurists spend so much time on classification [hint: compare the modes of acquisition of ownership!]?

Important dates:

The Monarchy [Regal Period]: c 753 – 510 BC
The Republic: 509 – 27 BC
The Empire: 27 BC – 476 AD (West), - 1453 AD (East)

Important statutes mentioned:

Law of the Twelve Tables 451 – 450 BC<
Lex Scribonia 1st century AD

Overview:

Focus on the following key facts when revising this chapter

Types of Things

  • Why do the Romans commence their discussion of property with an exposition of the different kinds of things? What is the relevance of this classification of the remainder of the law of property? Reflect on the relationship between classification and ownership.
  • Reflect on the significance of the following three classifications: corporeal and incorporeal, publican and private as well as res mancipi and res nec mancipi.

Dominium

  • The history of the Roman concept of ownership (dominium).
  • The essentials of dominium:
    • Commercium (reflect here on the meaning of this term, especially in the context of Roman citizenship).
    • Property capable of private ownership (reflect here on the different classes of property mentioned above).
    • Appropriate mode of acquisition (read in conjunction with chapter 7).
  • Was the Roman concept of ownership absolute? To what extent could others or the state interfere with the owner’s entitlement to this property?

[NB: the Roman concept of ownership (especially in relation to land) depended on the holding of Roman citizenship. A distinction was also drawn between land in Italy and in the provinces.]

  • What is the relationship between ownership and servitudes? (compare diagram 6.1)
  • Ensure that you understand the distinction between praedial and personal servitudes (compare diagram 6.2) Which one of these categories is the oldest?
  • Ensure that you are able to list and explain the general principles underlying all servitudes in Roman law. Reflect on how these general principles reinforce the nature of a servitude as a limited real right over the property of another.
  • Praedial servitudes:
    • What is the distinction between urban and rustic praedial servitudes? (for rustic praedial servitudes reflect on the classification of property as res mancipi or res nec mancipi).
  • Personal servitudes:
    • Reflect on the four different personal servitudes. For our purposes, the most important ones are use and usufruct. Why would one employ these limited real rights? [reflect on the main modes of creation of servitudes].
  • Creation, protection and termination of servitudes:
    • Reflect closely on the modes of creation. Since these limited real rights affected the use and enjoyment of the owner, they had to be created in a formal manner. [The modes of creation also reveals much about the purpose of servitudes in Roman law].
    • Why were there two actions available in the case of the protection of servitudes? What purpose did these serve?
    • Reflect on the modes of terminating a servitude. Pay specific attention to praedial servitudes that are, in principle, perpetual.
  • Contractual proprietary interests – what are these? How does this category relate to limited real rights? Essentially, these are contractual arrangements with an impact in the law of property. Pay specific attention here to real security (and compare the discussion in chapter 9).

Possession

  • What is the relationship between ownership and possession in Roman law? (Compare diagram 6.1)
  • What were the types of possession in Roman law? (Reflect on the protection as well). Why does the law protect certain forms of possession while providing no protection to other forms?
  • Define the corporeal and mental elements of possession. Did both of these elements have to be present simultaneously and continuously? Reflect here also on the loss of possession.
  • Ensure that you understand how the possessory interdicts operate. What is the significance of the requirement ‘nec vi, nec clam, nec precario’. Ensure that you appreciate how an interdict would operate and what a litigant could do if the terms of an interdict had been violated. Also reflect on the relationship between possessory interdicts and a full trial over the ownership of an object.
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