Law (criminal, private, persons, family, roman, constitutional) (271)
Institution
Stellenbosch University (SUN)
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Borkowski\\\'s Textbook on Roman Law
An in-depth document covering all of the work done in the year (semester 1 & 2). Includes notes made in class & textbook & additional material summaries. set out in an organised manner which makes the subject easy to understand. This covers all of the prescribed work done which will form part of th...
Law (criminal, private, persons, family, roman, constitutional) (271)
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Law of things
Definition of Res (thing)
Wider than the concept of ‘thing’ today
Any asset with economic value
Corporeal (corporals) & incorporeal (incorporales)
o Corporeal: something tangible (horse, car, pen) you can possess it
o Incorporeal: something you can’t touch (usufruct, inheritance, obligation) can’t possess
o Distinction NB: only corporeal things can be acquired through usucapio (rights you have over
corporeal/incorporeal differ)
Only corporeal things could be subject to ownership
Classification of property:
Gaius’ Institutes contains statements on prop classification
o Subject to human or divine control
o Corporeal or incorporeal (res mancipi & res nec mancipi)
Justinian Institutes made changes to Gaius’ Institutes:
o Category of res mancipi & res nec mancipi removed
o Types of classification of property were expanded
Classification of things
Corporeality:
Distinction emerged in later Republican period
Res corporals:
Can be possessed & acquired through usucapio
Can be touched
Res incorporales:
Can’t be acquired or possessed through usucapio
Can’t be touched
E.g. inheritance, obligations in contract, limited real rights (e.g. servitudes)
Public things:
Res communes:
can be used / enjoyed by everyone (air, sea, running water)
law recognized right to enjoy these things (even through no ownership is possible)
o interfering with others’ enjoyment rights could end up in delictual consequences
was part of res publicae, but got split in late classical period
Res publicae:
public things belonging to the state
e.g. roads, harbours, bridges, provincial land
rivers which flowed all year round were res publicae
interdicts could be used to prevent people from stopping public enjoyment of res publicae.
Res universitas:
things belonging to a specific municipality/ colony for use by that community (park, stadium, theatre)
from late classical period was described as res publicae, until Justinian period split it into separate category
Res nullius (things belonging to no one):
some res nullius could be acquired or owned like wild animals, or other prop through occupatio
res sanctae
things under protection of the gods & NB to Rome’s safety
e.g. city walls, gates etc.
res religiosa
, things dedicated to the underworld gods
evidence that Romans had little care for these resnot being owned – still paid for them.
e.g. graves, tombs, cemeteries
res sacrae
dedicated to heavenly gods
E.g. temples, basilicas, shrines, churches & temple equipment
sea shore
uncertain classification lacked clear legal identity
they enjoyed by public but belong to no one (don’t belong to the community, not res communes or publicae)
no one can own part of seashore but may build shelters etc.
o shelter becomes the builder’s property
o needed decree from praetor authorizing building
o could not build on the seashore if public use of the shore was impeded
Private things:
Res mobiles (movables) & res immobiles (immovable):
Immovable: land & permanent land attachments
o Distinction between land:
Italic land: res mancipi
Provincial land: res nec mancipi
distinction NB for prescription periods, possessory interdicts, constitution of servitudes
Res & res non fungibiles :
Fungibles: Generic things that can be replaced e.g. bricks, grain, tiles, money, food
o Consumable goods res consumptibiles
o Republic era: usufructs couldn’t be given ito fungibles
o Sale could only take place through stipulatio
Non-fungible: specific things e.g. slave, art, table (when you buy you specify what you want)
o Degree of permanence, not consumed
o Could be sold through emptio venditio
Distinction NB for contract types
Divisible & indivisible:
Relevant for division of prop held in co-ownership
If you divide it, it loses its value (e.g. horse) indivisible
Divisible: land, fabric, food etc.
Res Mancipi: !!
Distinction abolished in Justinian era
o Use of mancipatio & cessio decreased & bonitary ownership increased
Dominium transferred through formal methods only (Mancipatio & in iure cessio)
Things that determine the wealth of citizens for purposes of the census & which required formal transfer
methods to allow dominium to pass.
o Slaves, Italic (not provincial) land & land of the same status, beasts of drought & burden, rural
praedial servitudes
Beasts of drought & burden: oxen, mules, horses, donkeys
Limited category & could not be expanded or amended
Most NB things in early agrarian society, incl. specific things of high value to early Roman life
Res Nec Mancipi: !!
Everything else not incl. in res mancipi
incl. camels & elephants (can also be used as beasts of drought & burden but not classified as such)
Transferred through informal transfer methods like occupatio or traditio
,Ownership:
Romans lacked precise concept of what ownership was
Paterfamilias exercised control over all people/ things in household in early Rome
Element of community of property may have existed in early Rome
Social & economic changes, intellectualization of Roman law & civil procedure changes led to transition of an
uncertain concept of ownership to the technical concept of dominium
Cessio, mancipatio & traditio were the Roman modes of transferring property inter vivos
Content (nature of ownership)
Romanists: not jurists, studied law after the fact
Can only own corporeal things, not incorporeal things
Dominium endows owner with full power over the res, but power is subject to limitations
o Ownership described as unlimited/ exclusive, but only in principle
E.g. usufructs, rent etc.
Initially: no definition of ownership (Rome started as primitive society – no need for such definitions)
Content can differ from full rights to use & enjoyment to nuda proprietas (bare ownership)
Differs from iura in re aliena (rights in another’s things – limited real rights)
Ownership can be limited through:
o Public law
o Corpses (can’t burn them on your prop if you live in a city)
o Slaves (can’t kill your slaves even if they’re yours)
o Misuse of right
o Rights of others
o Retention, exercise or rights of 3rd parties (e.g. contracts for rent etc.)
o Neighbour law (e.g. rules of overhanging branches, physical boundary limitations)
E.g. you can’t plant trees within 5 meters of the boundary
Land:
General rule: landowner owns everything above & below his ground
Ownership couldn’t be divided vertically, only horizontally
o E.g. a field could be divided into areas, but a block of flats could not, since flats are vertical
Inhabitants of upper flats could only be tenants with contractual rights
o Decrees in Empire passed to allow the State rights in precious minerals found underground
o 12 Tables made some exceptions
Restrictions on owners:
restrictions mostly inspired by public policy considerations
most restrictions come from archaic period & some from classical period
12 tables:
o had to be at least 5ft. of open space between neighbouring property
o trees couldn’t be planted within 5ft. of the boundary line
o rules existed re: overhanging branches, fruit from neighbour’s trees, smoke from factories, wall
protrusion etc.
o restriction on house demolition
o allowed neighbours to act to prevent water damage from neighbour’s land or from neighbour’s
defective property
restrictions in place to keep peace in community
owner’s prop suffering damage from adjacent property construction could have praetor stop construction
neighbour law was NB: must show respect for neighbour’s property
unreasonable blocking of light/ views was restricted
co-ownership also resulted in some restrictions so that all owners could collectively enjoy property
Dominium (ex iure quirtium)
Roman ownership (ius civile)
Applicable to all objects under control of paterfamilias (things, wife & children) corporeal things
, o only later was there differentiation between wife/ kids & objects
Some foreigners granted commercium (right to trade & have dominium)
o Right to participate in ius civile processes: formal contracts, conveyances, & legal remedies in court
o Excl. right to Conubium (entering civil marriage) & testamenti factio (making valid will, being witness
to will & being beneficiary of will).
Most NB/ strongest right you could have over a res – oldest form of title
o Ownership described as unlimited & absolute (only in principle – restrictions apply)
Can’t acquire dominium over stolen things (res furtiva) – even if you didn’t know if was stolen
Can acquire dominium over res mancipi & res nec mancipi (method of acquiring ownership differs)
Very strict procedures for transfer methods – lack of legal knowledge was a problem
Conditions for dominium :
must have commercium
Meant only Roman citizens & foreigners with commercium could acquire dominium
Peregrine ownership applied to foreigners w/o commercium (not under ius civile)
property must be capable of being privately owned
Dominium couldn’t be acquired over things that couldn’t be privately owned
Provincial land was probably most NB form of non-privately owned property
o Belonged to the public or Emperor
o Rented through specific lease form: provincial ownership
Lacked dominium but was in practice close to full ownership & could be easily transferred
o Became obsolete in Justinian era when distinction between Italic & Provincial land was abolished
property must have been acquired through proper transfer methods
Must be transferred formally through mancipatio or cession – both had specific requirements
o During Republic, formal modes of acquisition were seen as cumbersome
o Traditio used more often to transfer property – praetors protected transferee’s interests by
developing bonitary ownership
Praetorian Ownership (aka Bonitary ownership)
Flows from distinction between res mancipi & res nec mancipi
Acquire this through the praetorian’s protective measures, not through ius civile
o Similar to dominium due to praetor’s protective measures
Only roman citizens or foreigners with trade rights could acquire this
Reason we have this is because we have res mancipi (formal transfer methods) & res nec mancipi
o If parties didn’t transfer res mancipi properly, original owner still owned the res & this creates an
unfair position
o Bonitary ownership gave transferee the praetor’s protection until dominium could be acquired
Interim measure (i.e. if strict transfer methods weren’t correctly followed)
Disuse in post-classical period: distinction between res mancipi & res nec mancipi disappeared after Justinian
Co-ownership(Communio):
Definition: Property belonging to more than 1 person (communio)
Modes of origin:
Consortium: comes about through testamentary succession (2 brothers inheriting land from father) OR
through legis actio procedure oldest form of co-ownership
Communio pro indiviso/ condominium: co-ownership in indivisible shares (voluntary partners)
o co-ownership & partnership isn’t the same thing
o Developed in classical & post-classical period
Mixing & mingling: e.g. when you have 2 bottles of wine mixed together (no longer distinguishable shares,
you become co-owners)
General principles:
While co-ownership continues, relationship between parties is like that of partners
Co-owners share profits & losses proportionate to their claim in the co-ownership %
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