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Roman law of servitudes (1).
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Roman law of servitudes (1).
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Roman law of servitudesSchulz: "a burden imposed upon a corporeal thing by a private legal act concerning the use of
the thing ... . As a rule servitus implies a right to use a thing belonging to another person ... ."
Marcian "attach either to persons, as in the case of the right of use and usufruct, or to things, as
in the case of rustic and urban praedial servitudes."
Together:
- Burden over someone else's property
- Benefit: person (personal servitude) or thing (praedial servitudes) - ANS-Servitude
Land owner context:
needing access to thing via neighbouring land
Family context:
legacy/will - gives ownership to daughter but gives personal servitude to wife to let her live in
house until she dies, whereupon daughter then gets house - ANS-Contexts of servitudes
Right in another's property - ANS-Iura in re aliena
MAJOR DIFFERENCES
1. Proprietary effect
- praedial attaches to thing and binds future holder of land. benefit + burden = thing so doubly
in rem
- personal. burdens thing, benefits person. Singly in rem - proprietary in burden
2. Res mancipi: res nec mancipi
- Only praedial rustic servitudes are res mancipi. Personal are res nec mancipi
2. Type of property subject to the servitude
- Praedial servitudes only concern land. Personal can be over almost anything
MINOR DIFFERENCES
1. Praedial can last forever, personal servitude finite with person
2. Personal servitude only one type (usufruct) vs praedial many types
3. Praedial gives servitude owner limited rights and does not interfere with dominus' ownership
much at all vs personal can give extensive rights and impact on dominus' ownership -
ANS-Distinctions between personal and proprietary servitudes
Land which is burdened - ANS-Servient Tenement
land which benefits - ANS-Dominant tenement
, - Promotes greater use of property (land finite supply)
- Public and economic benefit: servitude over plot B enhances price of it more than it detracts
from price of plot A
- Respecting wishes of the parties e.g. wills - ANS-Advantages of servitudes
- Danger of overburdening property
- Danger of stripping idea of ownership of all its real content
- More types of rights in rem law recognises, the more difficult it will be for prospective
purchasers of the ownership of that property to know of that servitude's existence so detract
from market in land and property.
- Tension between dominus and servitude owner (SC recognises this arg in Hunter v Canary
Wharf) - ANS-Disadvantages of servitudes
1. No servitude over a servitude
2. Rights in another's property only (unless land is abandoned, then servitude exists not over
someone else's property, but over abandoned property)
3. Cannot be possessed as is incorporeal - ANS-General rules of servitudes
Iter - right for man to go on foot/walk/go in sedan chair
Actus - right to drive either beat or burden or a vehicle + iter
Via - right to go on foot, drive, walk - iter + actus
- can drag rocks along path so in order to construct on your land must have via to bring
materials across
- allowed to drag an upright spear whilst going along the path provided you don't damage the
crops.
- had to be 8 feet when strength/16 feet when bend D.8.3.8
Aquae ductus - right to channel water across another's land
Not fixed list but oldest types all res mancipi - ANS-Types of rustic praedial servitudes
Concerns soil.
Can be allotted to fixed time D.8.1.5.1
Positive in nature - allows to exercise a right - ANS-Rustic praedial servitude general
- Must be economically beneficial to the dominant land, not just person owning the land for the
time being.
- Must be exercised reasonably - so does as little damage and inconvenience to the servient
land owner
- Could not impose active duties on servient land owner - ANS-Rustic praedial servitude rules
Early law
- thought of us corporeal thing
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