Summary
Summary Roman Law of Things Notes
- Course
- Roman Law 271 (ROMANLAW271)
- Institution
- Stellenbosch University (SUN)
Extensive notes and summaries on the examinable material in Roman Law 271
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ROMAN LAW OF THINGS1. CONCEPT OF RES & CLAS SIFICATION
1.1 DEFINITION OF RES
Wider than concept res today
Always difficult to define the concept
Any asset with economic value
Includes corporeal (corporales) and incorporeal (incorporales) things
Only corporeal things could be possessed or could be the subject of acquisition of ownership
through usucapio (prescription).
Why is it important to distinguish between corporeal and incorporeal? Because only corporeal
things could be possessed and not incorporeal.
1.2 CLASSIFICATION OF THINGS
Gaius classifies law as law pertaining to personae (persons and family law), actiones (Law of
procedure), and res (things)
Looking at the classification of corporeal things mostly
o Private things and public things
o Public things could not be privately owned
NB to know what are public and private, the sub divisions are not that important, you must
identify public thing, and remember examples.
1.2.1 CLASSIFICATION – PUBLIC THINGS
1.2.1.1 RES COMMUNES
Communes sounds like community - Belongs to everyone, used by everyone, enjoyed by everyone.
Could not be owned, but right to enjoy them.
For example: sea, running water, sky.
1.2.1.2 RES UNIVERSITAS
Intended for public use, owned by corporate public bodies such as municipalities and colonies.
Belongs to certain city or community, used and enjoyed by inhabitants
For example: stadium or theatre.
1.2.1.3 RES NULLIUS
Belongs to no one, but could be privately owned in certain instances
For example: wild animals, abandoned property, and ‘divine’ things.
1.2.1.4 RES DIVINI
Religious things
NB look at examples and know for test
NB: know categories, will not be given a list of things to classify, but remedies differ according to
categories.
1
, A) RES SANCTAE
Things that are protected by the gods to whom they were consecrated, crucial to the safety of
Rome.
For example: gates and city walls
Violation = criminal sanctions.
B) RES RELIGIOSAE
Dedicated to the underworld, could not be owned privately.
Example graves (tombs), grave yards, sepulchres, mausoleums, cenotaphs, and land used for
burial.
C) RES SACRAE
Formally consecrated and dedicated to the heavenly Gods
Temples, temple equipment, shrines, and sacred groves.
After period of Christianity: churches classed as res sacrae.
1.2.1.5 SEASHORE
Example of difficult categories (Textbook: 6.1.2.5)
Legal uncertainty:
o Shores are public, not in the sense that they belong to the community as such but they
are initially provided by nature and have hitherto become no one’s property.
o ‘being open to all’, ‘common to all’, ‘belonging’ to the whole people
NB TEST: Describe what the seashore was used for?
What it is used for? Everyone had the right of access to the seashore, as in the case of
riverbanks. No one could acquire any part of the seashore but shelters and similar erections
could be built, if authorized, and become the property of the builder. Building on the seashore is
‘allowed’ by the law of nations ‘unless public use is impeded’.
1.2.2 CLASSIFICATION – PRIVATE THINGS:
1.2.2.1 RES MOBILES & RES IMMOBILES
Relevant for prescription, for possessory interdicts, and the constitution of servitudes
Movable things: mobile, slave, horse
Immovable things: land, permanently attached to land
Distinction not as important in Roman law as in South African law
Relevant for period of prescription, for granting possessory interdicts, and the constitution of
servitudes.
1.2.2.2 RES FUNGIBILES & RES NON FUNGIBILES
Understand distinction, Latin not that important
Has impact on the contracts that are applicable.
Res fungibiles: things that can be replaced, numeric things, you do not refer to the individual
thing for example wheat, wine and money.
Res non fungibiles: specific thing that has a separate identity and a degree of permanence,
example a slave and a chariot.
Res fungibiles also Res consumptibiles: (sounds like consumes, things for example food) Just
because something is consumable does not mean it is necessarily replaceable, it can, but not
always. For example a particular expensive wine that is very old, is consumable but not
replaceable.
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, 1.2.2.3 RES MANCIPI & RES NEC MANCIPI
NB distinction, and KNOW LATIN
Important distinction because the methods of transfer for res mancipi and for res nec mancipi
differ, if you use the wrong method of transfer, the ownership is not valid. Will be given a set of
facts and you should know distinction to know if method used was wrong. Learn the list!
Res mancipi
o Transferred only through formal methods of transfer – mancipatio and in iure cessio
(mancipatio and in iure cessio was also in terms of ius civile which means it was only
applied to Roman citizens)
o Limited category, different reasons how the Romans decided what fell under this category
or not.
1. Things that determined wealth of citizen for purposes of census
2. Most important things in early agrarian society, things that worked for or with the
farmer.
o Despite the above, need to memorize the list!
NB TEST: Know if it is res mancipi or not, won’t be able to know if ownership can be transferred or
not.
o Example: slave, horses, donkeys, oxes, beasts, mules, rural private servitudes, land in
Italy, later extended to land in provinces that have same status as Italy.
o Distinction between res mancipi and res nec mancipi disappeared in the Justinian period
NB Know times: if a question does not state the time period, discuss all the different time periods
that is relevant, if it does state a specific time period only discuss that time period.
Res nec mancipi
o Everything else, everything that does not fall under res mancipi
o Not about economic value
o Transferred through Traditio (informal method)
o Possible for non-Roman citizens to transfer ownership.
1.2.2.4 Divisible and indivisible
Relevant for division of property held in co-ownership
Divisible things: Things that can be divided whilst retains value, does not have to be the same, NOT
slave, example like land or material.
2. REAL AND PERSONAL ACTIONS
(NB! not in textbook)
The foundation of the Roman law of things was the recognition of real actions as opposed to
personal actions. The focus was not on right, but from a procedural perspective
Romans put emphasis on the procedural point of view, therefore we look at actions.
→ NB : Know latin well, even spelling, but in case give English word in brackets
Real action = actio in rem
Personal action = actio in personam
Foundation of Roman law of things was recognition of real actions as opposed to personal
actions.
Ubi remidium: Romans used, first look at remedy, then if you have a right
Ibi ius: When you have a right, you have a remedy
Real right – right to a thing
Personal right – right to performance
Gaius makes the following distinction between actio in personam and actio in rem:
Difference is:
3
, o Actio in rem = claim direct control of corporeal thing
o Actio in personam = claim that someone has to give, do, or perform something.
2.1 ACTIO IN REM – REAL ACTION
Actio in rem instituted against the res itself, can claim res where-ever it is found.
Absolute patrimonial relation
Action through which process over ownership of res = rei vindicatio
Rei vindicatio – claimed ownership over a res
Against res itself
Claimant claims direct control over res – (do not have to memorise) meum esse-formula: "I say
that this res is mine according to the law of us Romans"
Grab res or symbol of the res
identity of other party to proceedings not mentioned in formula
Defendant’s choices:
o Contravindicatio: counter claim – claim is his (claim that it belongs to him)
o Acknowledge claim – can no longer contest claim, after that
o Refused to get involved – action considered undefended
(Action not against a person, cannot force person to be involved)
Initially actio in rem used in dispute over ownership (rei vindicatio) – later any dispute regarding a
res
Justinian – used to realize all absolute rights
Later the action in rem developed into the real right (ius in re) = thus it is the foundation for the
concept real right
2.2 ACTIO IN PERSONAM – PERSONAL ACTION
Action against specific person – identify of counter party important
It concerns a relative patrimonial relation
Claiming performance that is due
NB: Do not just learn off by heart, understand the work, must be able to compare, learn the
examples.
The specific person is charged before the court.
Formula: “I allege that you owe me 10 thousand sesterces”
Legal nexus between claimant and specific person that has to deliver performance.
Here the defendant did NOT have a choice
o He had to enter the dispute
o Otherwise tacit acknowledgement
Actio in personam developed into ius in personam, right to performance
‘A sees horse in B’s yard, takes horse to court…’
Specific person brought before court
Formula: ‘I claim that you owe me 10 thousand sentences’
Legal nexus between claimant and specific person that has to deliver performance.
Later ius in personam, right to performance
3. OWNERSHIP
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