Summary
Summary Roman Law 271 - The Law of Things
- Institution
- Stellenbosch University (SUN)
A very comprehensive summary of the Law of Things; which comprises most of the first semester of work for Roman Law 271.
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By: Nastassje • 7 year ago
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CHAPTER 6 - INTERESTS IN PROPERTY6.1 – The classification of property
6.1.1 - Corporeal and incorporeal things
‘Res’ = originally a ‘thing’ in the sense of a physical object.
Later = much wider meaning: Any asset that had economic value. Thus, also
included incorporeal things.
A corporeal thing = material thing – can be touched
An incorporeal thing = immaterial thing – cannot be touched (e.g. inheritance,
obligations, limited rights over property belonging to another person
servitudes)
NB: Only corporeal things could be possessed or could be subject of
acquisition of ownership through usucapio.
6.1.2 - Public and private things
Things were classified according to whether they could be privately owned or
not.
There was a variety of things that could not be privately owned Public
things:
6.1.2.1 - Res communes
Things common to all men e.g. air/running water/sea/etc.
Could be enjoyed, not owned.
6.1.2.2 - Res publicae
‘Public’ things – belonged to the State e.g. public roads/bridges/etc.
NB public thing = provincial land (Land in the provinces outside Italy)
6.1.2.3 - Res universitatis
Things that were intended for public use, owned by corporate public bodies
such as colonies and municipalities.
E.g. Public streets, buildings, theatres, etc.
,6.1.2.4 - Res nullius
Things that belonged to no-one.
Included wild animals, abandoned property, and ‘divine’ things.
(a) Res sanctae
Things considered to be protected by the gods to whom they were
consecrated, crucial to the safety of Rome.
E.g. City walls and gates.
Anyone who violated them was subject to heavy criminal sanctions. (Including
the death penalty in some cases)
(b) Res religiosae
Tombs/land used for burial/etc.
Certain conditions had to be satisfied before burial ground was classed as
‘religious’
(c) Res sacrae
Things formally consecrated and dedicated to the gods
E.g. Temples/shrines/sacred groves
Churches! – After the conversion to Christianity.
NB: Certain res nullius could fall into private ownership Thereafter ceased to be
res nullius.
6.1.2.5 - The seashore
Lacked a clear legal identity.
Differing opinions.
6.1.3 - Movables and immovables
Movables = permanent attachments E.g. land
Land = Italic land (res mancipi) or provincial land.
6.1.4 - Fungibles and non-fungibles
, Fungibles = Things that existed in quantities, rather than as separate entities.
E.g. Money/grain
Usually consumed through use.
Non-fungibles = Things which had a separate identity and a degree of
permanence E.g. A book/land/a chariot
Distinction NB in the law of contract.
Sale of fungibles = stipulatio
Sale of non-fungibles = emptio venditio
6.1.5 – Res mobiles and res immobiles
Relevant for prescription, for possessory interdicts, and the constitution of
servitudes.
6.1.6 – Divisible and indivisible
Relevant for division of property held in co-ownership.
6.1.7 - Res mancipi and res nec mancipi
Most NB classification of property in archaic Roman Law.
Rome’s earliest period – Justinian’s abolishment of it.
NB classification in the conveyance of property
Res mancipi = Slaves, beasts of burden, Italic land, houses on such land, and
rustic praedial servitudes.
Dispute about when animals became res mancipi.
Why was there reluctance to expand the list of res mancipi? = The formal
modes of conveyancing necessary to transfer dominium in such things
increasingly came to be seen as cumbersome and inconvenient.
Res mancipi = ‘Those things which had to be conveyed by mancipatio or
cession in order for dominium to pass’
Res mancipi = ‘Things useful or essential to household in early Roman society’.
Res nec mancipi = All other things.
= Did not need to be conveyed by the formal modes of conveyance = simple
delivery (tradition) sufficed to pass full title
NB: Distinction became less important as time progressed.
6.2 – Ownership
6.2.1 – Introduction
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