Chapter 7 Revision sheet

Acquiring ownership

Instructions:

This chapter should be revised in conjunction with chapter 6.

Aims:

This chapter focuses in greater detail on the modes of acquisition of ownership. Although the content may seem alien at first, it is vitally important to understand the link between modes of acquisition of ownership and the different types of things discussed in chapter 6. Certain types of things (owing to their nature or importance) could only be acquired in ownership through an appropriate mode of acquisition. It is therefore important to make these connections.

            Another vitally important issue is to distinguish clearly between the Roman classification of the modes of acquisition of ownership and the classification employed in modern civilian systems. The Roman classification is based on whether the mode arose from the civil law or from the ius gentium. Since this distinction is less useful in modern systems, an alternative one has been employed, based on whether ownership was ‘original’ or ‘derivative’. The first refers to objects that have never been owned before or that have become ownerless, whereas the latter refers to cases where ownership is derived from a prior owner. It is important to remember that the modern categories are not merely a relabeling of the Roman categories. In fact, they represent a repackaging of the Roman categories. This is a fundamentally important point.

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 Cincia on gifts 200 BC
Lex Atinia 2nd century BC

Overview:

Derivative modes (= derived from the ownership of a predecessor in title)

  • Mancipatio (link to the category of res mancipi).
    • Focus on the formal requirements and legal effect (especially in relation to the effects of fraud and duress).
    • The later history of this mode of acquisition is important. Compare the fate of other early acts of this kind in Roman law.
  • Cessio in iure (link the term in iure to Roman legal procedure).
    • Why would this mode be more useful in cases of incorporeal things?
  • Traditio (delivery)
    • Reflect on the four manifestations of delivery in Roman law. Why were these invented? [Hint: look at the nature of the objects]
    • There were two elements to delivery (intention and iusta causa). Did both elements have to co-exist in order for delivery to operate as a mode of acquisition of ownership? What underlies the debate over these matters?

Original modes (= of ownerless or abandoned property)

  • Usucapio (Why is usucapio classified as ‘original’ if it was seemingly based on a prior transaction?)
    • Under which circumstances would usucapio arise?
    • List and explain the requirements for usucapio in classical Roman law. Focus specifically on the good faith and iusta causa requirements. What do these terms signify in this context?
    • What is the relationship between usucapio and longi/longissimi temporis praescriptio?
    • Explain the relationship between usucapio and the actio publiciana. (Make sure that you understand the differing levels of protection afforded to the possessor in good faith and bonitary owner respectively). What do these two terms mean?
  • Occupatio
    • Which categories of property were susceptible to ‘first-taking’?
    • When can property legally be classified as ‘abandoned’?
  • Accessio
    • What is the relationship between accessio, confusio and commixtio?
    • Can you identify a broad rule that applied to instances of accessio affecting land? Can you identify a similar broad rule for accessio affecting movable property?
  • Specificatio
    • What is the relationship between specificatio and accessio?
    • Explain the significance of the Proculian-Sabinian debate here.
    • What was a nova species in Roman law?
  • Ownership of Fruits
    • Why did Roman law distinguish between severance and gathering? Can you deduce any general rule in this regard?
  • Treasure Trove
    • Why did the State interfere in the Roman law on treasure trove?
  • Adiudicatio (reflect on Roman civil procedure)
    • Under which circumstances would this procedure be used?
    • Why is it classified as an ‘original’ mode?

Gifts (Explain how the act of gifting can be seen as a mode of acquisition of ownership)

  • Donatio inter vivos (compare here the restriction on gifts between spouses)
  • Donatio mortis causa (What happened where the expected death did not arise?)
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