AIMS
Difference between real and personal rights
Difference between dominium & possessio / detentio
Difference between dominium & limited real rights
Focus on acquisition and transfer of rights
WHY DO WE STUDY THE ROMAN LAW OF THINGS?
Important source of modern property law
Roman law is an important source of specifically the South African law of things. Some of the basic
concepts found in the Roman law are still used within the context of the South African law such as
the clear distinction between real and personal rights.
Institutional framework
Roman law also gave us one of the most important divisions of the law of all times. It provides us
with an institutional framework within which to study the law. Gaius divided private law into three
sections – the law relating to personae, res and actiones.
, ROMAN LAW OF THINGS OVERVIEW
RES (Things)
DOMINIUM (Ownership)
POSSESSIO /
DETENTIO
Content & Forms Acquisition
Content Acquire
Loss
Loss
LIMITED REAL RIGHTS
EMPHYTEUSIS
SERVITUDES (Read only)
Praediorum Personarum
(Praedial) (Personal)
REAL SECURITY
SUPERFICIES
(Read only)
,ROLE & PLACE OF LAW OF THINGS
Why the need for a Law of Things?
As society developed to allow a specific person to exclusively use a specific thing for himself,
there developed a need for rules regulating such exclusive use – determining what a person
may or may not do with his thing as well as the consequences of another person interfering
with the exclusive use.
Rome developed from a primitive agricultural society and therefore the first things
susceptible for exclusive use were probably things necessary for survival in these
circumstances – such as tools, implements and food.
Roman jurists came to realise that they also had to recognize the claims of persons that did
not have physical control of a thing.
Ownership was recognised as the strongest right over a thing – the strongest protection for
an owner against third parties.
Ownership was protected by a real action – the rei vindicatio.
The right of ownership comprised the right to use a thing, to receive its fruits and to alienate
or destroy a thing – ius iutendi, fruendi et abutendi.
Role of Law of Things
The law of things regulates the relationship between persons and things.
The law of things deals with real (absolute) relationships.
Real rights are absolute because the holder of the real right is protected against
infringement regardless of the identity of the person infringing the right.
Foundation
The foundation of the Roman law of things is the recognition of real actions as opposed to
personal actions. Accordingly the distinction between personal and real rights was already
important in Roman times. However, the focus was from a procedural perspective – focus on
actions.
,
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