roman-property-law-short-summary.pdf

lOMoARcPSD|29311869 Roman Property law- short summary Roman Law of Property (Universität Wien) Studocu wird von keiner Universität gesponsert oder unterstützt. Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 Legal capacity starts with 12 for girls and 14 for boys. -> if I...

lOMoARcPSD|29311869 Roman Property law- short summary Roman Law of Property (Universität Wien) Studocu wird von keiner Universität gesponsert oder unterstützt. Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 Legal capacity starts with 12 for girls and 14 for boys. -> if IMPUBERES INFANTIA MAIORES / PUPILLI without their TUTOR's consent enter into a contract it's a NEGOTIUM CLAUDICANS = only the conferring of rights on PUPILLUS is valid, obligations are not binding. MINORES (<25) are protected by LEX PLAETORIA: special regards to unconscionable/ disadvantageous transactions + a CURATOR MINORIS can be appointed    Women require TUTOR MULIERIS -> only enter legal obligations with his consent FURIOSI are incapable of legal action -> CURATOR FURIOSI Someone who squanders inheritance (PRODIGUS) -> CURATOR FURIOSI Property Rights => Rights in Rem are enforceable by ACTIONES IN REM only of RES CORPORALES (can be touched) Types of property rights: - ownership (DOMINIUM) -servitudes (SERVITUTES) -pledge (PIGNUS) -emphyteutic lease (EMPHYTEUSIS) -hereditary building rights (SUPERFICIES) -> REI VINDICATIO -> VINDICATIO SERVITUTIS -> VINDICATIO PIGNORIS -> VINDICATIO UTILIS -> ACTIO DE SUPERFICIE POSSESSIO -factual control over object CORPUS -intention to control it ANIMUS; one need ANIMUS REM SIBI HABENDI you can also have (im)mediate possession of object (control exerted by another): > If holder is SUI IURIS (not slave, nor in his paternal/marital power) = detention; detentor has ANIMUS REM ALTERI HABENDI and immediate control over object (possessor only has mediate control over object) > person who is ALIENI IURIS (in possessor's power) is a possessor's agent-> DOMINUS has through slave immediate control over object IUSTA POSSESSIO (NEC VI, NEC CLAM, NEC PRECARIO) can safeguard his possession through interdicts : prohibits use of force against him (VIM FIERI VETO) INIUSTUS POSSESSOR is not protected by interdicts and it is permitted to repel force with force (B had stolen vase from A and sold it to C -> A can only obtain an interdict against B, not from C because C is IUSTUS POSSESSOR (had obtained vase NEC VI NEC CLAM NEC PRECARIO) civil (lawful) possession is possession resulting from a valid title (IUSTUA CAUSA) = POSSESSIO EX IUSTA CAUSA / POSSESSIO CIVILIS FURTUM: someone appropriates object while knowing it belongs to another person (DOLUS: larcenous intent) Someone who keeps a thing that has obviously been lost is a FUR Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 Victim of FURTUM can bring two actions: - ACTIO FURTI (imposes penalty) - CONDICTIO FURTIVA (recovery of stolen object) - REI VINDICATIO if victim is owner Original mode of acquiring possession = effected only through person's own action, without aid of previous possessor eg OCCUPATIO: taking possession of RES NULLIUS. Through OCCUPATIO person acquires possession and ownership a thief also acquires original possession (acquires possession through own action) but never ownership Derivative mode of acquiring possession = previous possessor transfers control over the thing and thus possession to successor -> TRADITIO: transferor delivers object to transferee distinction btw. agreement which creates obligations to transfer property and the conveyance (transfer of property right itself) Conveyance mostly transfers of proprietary possession by delivery (TRADITIO). In order for TRADITIO there has to be an agreement. -> difference between intent to purchase something and intent to take possession of it (=ANIMUS POSSIDENDI). case ANIMUS POSSIDENDI in case of sealing a wine barrel:  Trebatius: sealing barrel is indication of buyer's ANIMUS POSSIDENDI  Labeo, Ulpian: doesn't indicate intention to acquire possession of the wine -> look at context     you have CORPUS of piece of land as soon as you set food on it if seller shows buyer piece of land from a tower belonging to the buyer, it is sufficient CORPUS (sphere of influence) good is transferred in your house: it is in your sphere of influence buyer of goods stored in a warehouse acquires possession of them as soon as keys are handed over, provided that handover takes place at the warehouse. If keys are handed over in a different location, only sufficient CORPUS if keys are only means to enter the warehouse case hunter wounded a wild animal to a degree that it can be captured  Trebatius: sufficient CORPUS as soon as it's wounded to such a degree that it can be captured  Gaius: not sufficient CORPUS; only when really acquiring it -> if animal can free itself it's not sufficient CORPUS; question if trap is on public or property of other person Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 Exercise 1 a) ANIMUS and CORPUS are necessary for the acquisition of ownership. At the viewing Bellona does not yet have ANIMUS POSSIDENDI and CORPUS, therefore no acquisition of ownership takes place here. Also at the meeting on the Forum Romanum no acquisition of ownership takes place yet, although here Bellona already forms ANIMUS POSSIDENDI by concluding the obligation transaction (EMPTIO VENDITIO contract of sale). The CORPUS is still missing. -> This is only present one week later when the property is entered. At this point Bellona acquires ANIMO ET CORPORE possession. b) Bellona establishes ANIMUS when Ago and her agree on the sale on the mansion. Bellona acquires CORPUS when she agrees with Ago on the sale while standing on the mansion and looking on the garden (The garden is in her sphere of control). -> Bellona acquires possession at the mansion when Ago and her agree on the delivery of the garden Exercise 2 Carus establishes CORPUS when he seals the barrels (gets in contact with them). Carus establishes ANIMUS POSSIDENDI when seals the barrels and says "This wine now is mine". Because he says it, one knows that he wants to possess it, therefore the act of sealing indicates ANIMUS. -> yes he acquires possession when he seals the barrels Exercise 3 In the present case, CORPUS on the money is to be negated, since leaving the purse in a busy marketplace cannot guarantee safe and constant control over the thing. The thing, if it lies open and unsecured on the table, can far too easily be stolen, which is what happens. Felix has therefore not acquired ownership of the money. Exercise 4 Helene establishes ANIMUS when she tells Stilo that she wants to take the statue immediately. She also has CORPUS over the statue as it's an agreement in actual presence. So she possesses the statue already in the shop. When she leaves the statue in the shop, Stilo acts as her detentor and has ANIMUS REM ALTERI HABENDI. Helene has ANIMUS REM SIBI HABENDI. Exercise 5 Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 Japyx acquires ANIMUS over deer by digging a trap in the wood in order to catch animals. Japyx acquires possession because the deer cannot free itself from the trap and is therefore in his sphere of influence. Japyx doesn't acquire possession because a third person could come and take the deer. He doesn't acquire CORPUS and hence not possession. This danger is even increased because it is on someone else's property. Exercise 6 This is an agreement in material presence, where CORPUS is present even without physically grabbing the thing. Leo sees that Cassandra lays down the money and he could seize it at any time. The ANIMUS POSSIDENDI is expressed by his accepting the money (issuing the receipt) and disposing of it further (asking to take the money to Merops). Here Leo acquires derivative possession of the money. From now on, Cassandra is only the direct third-party owner of the money. In the robbery, the robbers acquire original possession of the money, since their possession is not derived from the possession of a foreman. Exercise 7 Orion establishes ANIMUS when Nike sold the property to him in February. But he never established CORPUS as he never set foot on the property. Therefore he doesn't have possession over it. Until March Nike had ANIMUS and CORPUS over the land, so she possessed it. But she gave up her ANIMUS when she texted Orion. When Philo moves on the empty piece of land he establishes CORPUS as soon as he sets foot on it and he establishes ANIMUS when he first had the intent to possess it. Philo acquires original possession. Exercise 8 a) Quartus established ANIMUS when he agreed with Ismene over the goods. He established CORPUS when Ismene gives him the keys in front of the warehouse. He possesses the goods as soon as Ismene handed him the key over b) Quartus established ANIMUS when he agreed with Ismene over the goods. Quartus does not establish CORPUS when Ismene gives him the keys, as they are the wrong keys and the goods are therefore not in his sphere of influence (because he can't enter the warehouse where the goods are). Quartus does not acquire possession over the goods. Ismene is still the posssessor of the goods. Exercise 9 Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 Victor establishes ANIMUS when he agrees with Niobe over the delivery of the hive. He establishes CORPUS when the hive enters his sphere of influence -> when they are on his estate. Half a year later, when he rents the beehive to Valerian, Valerian establishes ANIMUS and CORPUS. Valerian possesses the beehive Exercise 10 Juno is the detentor of Ramses, he has ANIMUS REM ALTERI HABENDI. Tiro by stealing the horse establishes ANIMUS and CORPUS and therefore establishes flawed possession. He has a INIUSTA CAUSA as he got the horse by means of VI, CLAM, PRECARIO. When he sells the horse to Vibia she establishes lawful derivative possession of the horse (as it is NEC VI, NEC CLAM, NEC PRECARIO). Juno can bring the REI VINDICATIO against Vibia when he is the owner of the horse. acquisition SOLO ANIMO: > TRADITIO BREVI MANU: detentor acquire possession by arrangement with possessor: possessor gives up his ANIMUS REM SIBI HABENDI and the detentor aspires to become the new possessor. The acquirer already has CORPUS. > CONSTITUTUM POSSESSORIUM DOMINUS can acquire immediate possession over an object through a person in his power (SERVI, FILII). -> the DOMINUS can express his ANIMUS in two ways:  through IUSSUM: orders person in his power to make a particular transaction  through PECULIUM: gives person general authorisation to acquire possession for him person now can manage independently; whatever he acquires he acquires for DOMINUS Acquisition of possession by agents SUI IURIS A asks B to buy something from C for him. First B is possessor. Then A buys it from B, then A is possessor (indirect agency). 3 exceptions to acquire through SUI IURIS person:  CURATOR acquires directly for person in his care  TUTOR acquires directly for his minor  PROCURATOR (earlier slaves but liberated by master) acquires directly for master Exercise 11 Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 Her ANIMUS can be inferred from the IUSSUM she gave to Carus. Her CORPUS is first established when Carus fetches the horse. -> Agatha acquires immediate possession over the horse through her slave when he fetches the horse. Exercise 12 a) By sending Gripus with the IUSSUM to buy a slave Felix indicates his ANIMUS for the fluteplaying slave. Felix establishes CORPUS over the flute player when the slave is delivered to his son. But he only establishes possession over the harpist when he Gripus hands him over to his father. b) If Gripus had been granted a PECULIUM Felix would acquire possession of both slaves as soon as the slaves are handed over to Gripus (as soon as Gripus establishes CORPUS over them). c) First by buying the slaves Gripus would establish possession. When getting home Gripus would sell the slaves to his father and only then the father would be getting possession over them. Exercise 13 Everything Melitta buys possesses Leo. As she is granted with a PECULIUM from him it doesn't matter if she buys it for herself or any other means, it always belongs to Leo. Exercise 14 Eros is the detentor of the carriage, he has ANIMUS REM ALTERI HABENDI. When she gives the carriage to Eros, Eros acquires the carriage BREVI MANU. When Daphne gift the carriage to Eros she gives up her ANIMUS REM SIBI HABENDI. Eros already has CORPUS and only need to establish ANIMUS. As soon as Daphne declares the carriage to belong to Eros it belongs to him. Exercise 15 Orion acquires derivative possession over the ox. By giving the ox to the slave he still has immediate control over the ox and he still possesses it. When Pius comes and says that it is his ox, Orion gives up his ANIMUS REM SIBI HABENDI and by renting the ox from Pius he establishes ANIMUS REM ALTERI HABENDI. From now on the ox belongs to Pius, who has mediate control over the ox through Orion. Exercise 16 Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 ANIMUS and CORPUS are necessary for the acquisition of ownership. Cassandra acquires ownership of the property through the auction and through the inspection (only then!). Direct agency among person that are SUI IURIS is not possible, otherwise Japyx would have acquired possession. Cassandra therefore has direct proprietary possession of the land. However, by asking Japyx to rent her the land, she gives up her will to own it and becomes a third-party owner of the land. It is a CONSTITUTUM POSSESSORIUM, whereby Japyx simultaneously becomes the owner of the property. If Cassandra does not rent the estate, Japyx only acquires ownership of it by visiting in late summer. Someone who occupies a land can only become possessor if original possessor makes no attempt to regain control or his attempt fails. SERVUS FUGITIVUS: - Possession is retained SOLO ANIMO as long as no third takes possession - master retains everything slave takes with him + continues acquire through him -> if third party captures possession over slave in good faith: slave acquires for him -> if in bad faith: he cannot acquire possession through slave Exercise 17 Bellona acts as detentor for Ago. Ago has mediate control over the statue and ANIMUS REM SIBI HABENDI. Bellona has immediate control over the statute and ANIMUS REM ALTERI HABENDI. When she throws the statue in a river Ago loses possession as he doesn't have CUSTODIA (he doesn't have the ability to regain factual control anymore) over it anymore. However, he still remains the owner. Exercise 18 When Carus leaves his estate, he retains possession SOLO ANIMO. As long as he doesn't know that Daphne broke into his house he retains the possessor. When gets informed about it and doesn't intervene he loses possession. Daphne is the new possessor. Exercise 19 Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 Flora has the ANIMUS to get the horse because she sends her slave as a possessory agent with a IUSSUM to Eros. When Gripus fetches the horse she establishes CORPUS through him over the horse. She has immediate possession over the horse through Gripus. When Gripus runs off with the horse he is a SLAVUS FUGITIVUS. Flora still is the possessor over the slave and everything he takes with him. She also has possession over everything the slave acquires. Gripus comes in the hand of robbers. Flora loses possession. As they acquired possession over Gripus in bad faith they cannot acquire possession over the slave. Exercise 20 Helene has possession over the estate over Felix. She has ANIMUS and the CORPUS. When Felix sub-leases it to Kreon this doesn't change her possession, she still has the control over it. When Kreon is driven off the land by invaders he looses immediate control over it and Helene looses the mediate possession of the estate. Exercise 21 Leo is the possessor over the sheeps, he has ANIMUS REM SIBI HABENDI and control over them CORPUS. When one wether runs away, he looses possession as he doesn't have CUSTODIA over it anymore (he can't regain factual control over it anytime). The wether has no possessor. Marcia knows that the sheep belongs to Leo, but still keeps it. She is a FUR. Now she has possession over the sheep, as she has ANIMUS and CORPUS.. Exercise 22 Nike has immediate possession over the building through Orion. He has ANIMUS REM SIBI HABENDI and control over it (CORPUS) through Orion. When Orion dies and the tenants leave he has possession over the estate SOLO ANIMO. When he gets informed, he sends a slave to replace Orion. He stays possessor over the estate as soon as Solon arrives there. Ownership = DOMINIUM / PROPRIETAS -> right to have an object for oneself   protected by interdicts when he as a IUSTUS POSSESSOR is affected. REI VINDICATIO to reclaim property through TRADITIO transfer (= conveyance) the right over an object Acquisition of ownership: Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869    conveyance usucaption by "natural" means Conveyance: transfer ownership to acquirer by legal transaction (derivative) > MANCIPATIO > IN IURE CESSIO > TRADITIO NEMO PLUS IURIS TRANSFERRE POTEST QUAM IPSE HABET: no one can transfer more than one has USUCAPIO: when acquisition fails due to a defective conveyance -> after period of time the object belongs to the ususcapient. The former loses ownership MANCIPATIO: formal transaction for RES MANCIPI (buildings, slaves, animals,...) - transferor + transferee - person that hold scales - five witnesses IN IURE CESSIO: formal - acquirer claim before praetor that the property is his own and vendor remains silent -> used for RES MANCIPI & RES NEC MANCIPI --> do not require IUSTA CAUSA; only conveyance and formal requirements TRADITIO: no formal requirements, 3 prerequisites:  Authorisation: NEMO PLUS IURES TRANSFERRE POTEST QUAM IPSE HABET  Transfer of possession: by handover or TRADITIO BREVI MANU or CONSTITUTUUM POSSESSORIUM  Title: transfer is based on IUSTA CAUSA transfer of civil-law ownership -> only RES NEC MANCIPI when RES MANCIPI are transferred by TRADITIO (not MANCIPATIO; IN IURE CESSIO) transferee civil-law ownership only after period of ususcaption BUT transferee is bonitarian owner (ACTIO PUBLICANA instead of REI VINDICTIO) case: E delivers object to T, which T should donate to Titius in E's name. T takes the object and gives it to Titius as a gift in his own name. 1) Authorisation: T doesn't own the object & he is not authorised-> invalid Titius doesn't acquire ownership because T is not the owner of object and NEMO PLUS IURIS TRANSFERRE POTEST QUAM IPSE HABET, T is FUR Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 -> In some cases (donation & loan) when it doesn't change the outcome there mustn't be a consensus over the CAUSA => german law no necessity of a IUSTA CAUSA: transfer of ownership acquires only agreement btw. parties Derivative modes of acquiring ownership in modern civil law codifications  transfer of ownership by mere consensus: transaction when parties reach consensus about the contract according to which ownership is to be acquired, france  transfer of ownership by abstract conveyance: validity of conveyance is independent of validity of underlying agreement (CAUSA); Germany  transfer of ownership by causal conveyance: Authorisation, conveyance, legal title ; Austria, Swiss, Dutch French: transaction as soon as owner enters into an obligation towards the acquirer -> transaction when parties reach consensus about the contract according to which ownership is to be acquired (principle of consensus) -> Obligations have effect of transferring ownership Germany: differentiate between the creation of obligations and the conveyance -> validity of conveyance is independent of validity of underlying agreement (CAUSA) German law requires: - transferor is the owner/ authorised to dispose it - act of conveyance - agreement on the passing of ownership -> not necessary to agree on the legal cause for the transfer Austria: conveyance of movables through: physical handover, declaration ( CONSTITUTUM POSSESSORIUM, BREVI MANU) immovable properties: physical act of conveyance replaced by entry in land register Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 Exercise 23 Ramses is the owner of the vase. He has the authorisation to sell it to Juno. Ramses and Juno agree over the transfer of the vase (EMPTIO VENDITIO) -> IUSTA CAUSA. When Juno sends her slave Solon with a IUSSUM this indicates her ANIMO to possess the vase. As soon as Solon fetch the vase Juno also establishes CORPUS through Solon over the vase. She has immediately possession over the vase through Solon and as TITULUS and MODUS are met, she has civil ownership over it. When Solon is on the way home the vase is stolen by Tiro. Juno loses immediate possession over the vase, but not ownership. Tiro is the new possessor of the vase, he has ANIMUS REM SIBI HABENDI and physical control over it. Juno can demand the vase back by REI VINDICATIO. She could also bring CONDICTIO FURTIVA or ACTIO FURTI against Tiro. Exercise 24 IN IURE CESSIO is a formal transaction, where the transferee has to claim before the praetor that the object is now his. It is not dependent on the existence of a IUSTA CAUSA. Requesites are the authorisation of the transferor and the formal act of conveyance. Therefore Ufens become civil owner of the ox. Because of the missing IUSTA CAUSA Ufens can bring the CONDICTIO INDEBITI to demand the ox back. Exercise 25 derivative acquisition: Authorisation: Bellona owns the sculptor and therefore has the authorisation to sell it to Ago IUSTA CAUSA: Ago and Bellona agree over the contract of sale (EMPTIO VENDITIO) -> the conveyance might be problematic, because the wrong statue is handed over. Ago doesn't acquire ownership whether of the Pentesilea statue and neither of the Diana Exercise 26 derivative acquisition: Authorisation: Felix owns the money, so he has the authorisation to give it to her Conveyance: Felix gives her the money IUSTA CAUSA: There is no IUSTA CAUSA between Felix and Europa. Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 -> Europa is not the owner of the money the TRADITIO was unsuccessful. Gripus is the owner of the money and can demand the money from her by REI VINDICATIO. If Europa already spent the money Gripus can brind a CONDICTIO against her . Exercise 27 A horse is a RES MANCIPI. For Leo to get civil owner of the horse a IN IURE CESSIO or MANCIPATIO is required. When a RES MANCIPI is conveyed over TRADITIO only bonitarian ownership takes place. MODUS and TITULUS are valid. Xerxes steals the horse from Leo, he is the new possessor of the horse, but not the owner, because there is no IUSTA CAUSA. When Xerxes sells the horse to Thisbe, he has no authorisation to do so. Thisbe is acting in bad faith and therefore not able to ususcapt the horse. Leo can demand the horse from Thisbe by ACTIO PUBLICANA. Exercise 28 Merops lacks authorisation to convey the animals, therefore Nastes didn't acquire bonitarian or civil ownership. USUSCAPIO -> when conveyance is defective because for formal reasons + when TRADITIO of a RES MANCIPI acquirer only acquires bonitarian ownership + someone who occupies an ownerless RES MANCIPI. Initially bonitarian ownership, after 1 year (movable) or 2 year (immovable) requires civil law ownership -> attempt to acquire derivative ownership failed because of a legal deficiency of transferor; lawful possessor acted in good faith acquire ownership after a certain period of time -> Ususcaption as part of dormination inheritance, when there are no heirs : requires undisturbed possession for one year Reasons for failing TRADITIO:  transferor lacked ownership or authority  acquired property from a PUPILLUS, FURIOSUS or PRODIGUS (lack of transactional capacity)  lack of valid CAUSA ---> if the acquirer acted in BONA FIDE and has no valid cause, he has a putative title & fulfils the requirement for ususcaption. Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 5 requirements in order for Ususcaption to take place: 1. RES HABILIS (thing capable of being usucapted) 2. TITULUS (legal title) 3. BONA FIDES (good faith) 4. POSSESSIO (possession) 5. TEMPUS (period of time) 1. RES HABILIS: RES EXTRA COMMERCIUM are exempt from ususcaption = RES PUBLICAE ( = RES DIVINI IURIS = RES FURTIVAE 2. TITULUS: IUSTA CAUSA/ putative title (justified by good faith) 3. BONA FIDES: if he is mistaken believing circumstances regarding the transaction at the time of acquisition; someone who errs about facts not legal knowledge 4. POSSESSIO: Ususcaption begins as soon as acquire possession & uninterrupted possession during TEMPUS; mediate possession is enough If ususcapient lost possession: ACTIO PUBLICANA, possessory interdicts 5.TEMPUS: movables 1 year ; immovables 2 year if possession is lost TEMPUS begins from beginning anew Austrian law Bona fide acquisition: obtaining object of unauthorised vendor without insisting on a period of qualified possession (TEMPUS). 367, 368 ABGB requirements for BONA FIDE acquisition:  Movable property (real estates only if (erroneous) entry in land register/ususcaption)  Good faith ("purchaser without notice")  IUSTA POSSESSIO and POSSESSIO EX IUSTA CAUSA (civil possession) -> under absence of valid title acquire original ownership by ususcaption after 30 year)  Consideration  Commercial dealings (public auction, businessman)  Acquisition by someone to whom owner has entrusted the goods Bona fide acqusition is possible when: - consideration and the acquisition took place in a public auction, - from a businessman in the ordinary course of his business, - it is from someone entrusted with the property. Ususcaption of stolen goods is permissible if possessor proves that -> he has acquired the asset for consideration in public auction or -> from a businessman in the ordinary course of his business. (Contrary: Roman Law regards stolen goods as RES INHABILES, precluded from ususcaption) Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 Bona fide acquisition is impossible if thing was a gift not from owner -> ususcaption still possible. Stolen things are excempted neither from bona fide acquisition nor from ususcaption > Proper (short) usucaption: Movables after three years of qualified possession > Improper (long) usucaption: Without valid title after thirty years Under what conditions does one acquire ownership of movable property derivatively under the applicable Austrian law? Transfer of object by causal transfer: -Valid title (IUSTA CAUSA) -Transfer of the thing (TRADITIO) -Hand to hand -by declaration -for certain things: sign (entry into land register) What is the fate of an object under property law that is sold twice by the owner? ABGB: Handover as a prerequisite for the acquisition of ownership: the person who receives the thing handed over acquires ownership of the thing. Germany: A transfer of ownership takes place, even if the transferor is not the owner/authorized (provided the transferee acts in good faith and isn’t grossly negligent) Switzerland: Same as Germany, but the object may be reclaimed within five years (if the acquisition took place in a public auction, from a businessman in the ordinary course of his business or on the market, the original owner must pay a reimbursement). France: In matters of movables, possession is equivalent to ownership, but the original owner may reclaim it for three years (cases of reimbursement similar to Switzerland). Italy: If good faith and title are provided, ownership of an object (if not entered in a public register) acquired from an unauthorized seller is possible. Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 Exercise 29 Ago sells the piece of land to Cara. Was the derivative acquisition successful? 1. Authorisation: Ago is not the owner of the land, therefore he can not sell it to Bellona. NEMO PLUS IURES TRANSFERRE POTEST QUAM IPSE HABET -> no derivative acquisition test USUSCAPT: 1. RES HABILIS: piece of land is not a RES EXTRA COMMERCIUM 2. TITULUS: Cara acts in good faith, she doesn't know that Ago is not the owner. She has a putative title and it is valid 3. BONA FIDE: Cara acts in BONA FIDE 4. POSSESSIO: She has immediate possession over the land through Dexter 5. TEMPUS: for usucaption of immovable property 2 years. Cara only possessed the piece of land for ca five months so she didn't acquire civil law ownership of the piece of land -> Bellona can demand the property back by way of REI VINDICATIO Exercise 30 derivative acqusition: 1. authorisation: Eros is the owner, but he lacks legal capacity as he is a FURIOSUS and cannot enter into a EMPTIO VENDITIO by his own name -> derivative acquisition unsuccessful check Ususcaption 1. RES HABILIS: a parrot is not a RES EXTRA COMMERCIUM 2. TITULUS: EMPTIO VENDITIO 3. BONA FIDE: If Flora wasn't aware of the fact that Eros is mentally ill she acts in BONA FIDE and has a putative title. If she by the time of the EMPTIO VENDITIO knew that Eros is mentally ill she cannot start ususcaption 4. POSSESSION: Through the EMPTIO VENDITIO Flora indicates her ANIMUS REM SIBI HABENDI. When the parrot is delivered to Flora she establishes CORPUS. She has immediate possession over the parrot. 5. TEMPUS: The time period for movable objects is 1 year. Flora possesses the parrot 1 year so she is acquires civil law ownership over the parrot The parrot comes in the hands of Gripus. Flora can bring a REI VENDICATIO against him. Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 b: if Flora erred about the legal fact then she doesn't act in BONA FIDE and can't ususcapt the parrot Exercise 31 derivative acquisition: Authorisation: Helene lacks authorisation to sell the horse as she is not the owner of it and has not the authorisation to sell it. NEMO PLUS IURIS TRANSFERRE POTEST QUAM IPSE HABET. -> derivative acquisition fails Ususcaption: 1. RES HABILIS: horse is not a RES EXTRA COMMERCIUM, one can usucapt it 2. TITULUS: EMPTIO VENDITIO 3. BONA FIDE: Kassandra believes that Helene is the owner of the horse and acts therefore in BONA FIDE. She has a putative title and ususcaption is possible 4. POSSESSION: Kassandra shows her ANIMUS REM SIBI HABENDI by sending Leo with a PECULIUM to fetch the horse. When Leo fetches the horse she establishes immediate control over the horse and possesses it through him 5. TEMPUS: in order to acquire civil law ownership of movables one need to posssess it without interruption 1 year. Kassandra only demands the horse back after 14 month, so Japyx already has civil ownership over the horse -> Kassandra can not demand the horse back and Japyx is permitted to keep it Exercise 32 derivative acquisition: Authorisation: Melitta is only the detentor of the cart and has therefore no authorisation to sell the cart -> no derivative acquisition possible Ususcaption: 1. RES HABILIS: a cart is not a RES EXTRA COMMERCIUM, but it is a RES FURTIVA. Because Melitta as the detentor sells the cart she is a FUR. one cannot usucapt RES FURTIVA. -> ususcaption fails and Orion stays the owner of the cart over the whole time. Orion can demand the cart by REI VINDICATIO Exercise 33 derivative acquisition: Authorisation: Ramses lacks authorisation to sell the donkey as he is a PUPILLI (under 14) -> no derivative acquisition Ususcaption: Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 1. RES HABILIS: the donkey is whether stolen (RES FURTIVA) nor a RES EXTRA COMMERCIUM (RES DIVINA; RES PUBLICAE)-> one can ususcapt it 2. TITULUS; Ramses is 12 years old and therefore lacks transactional capacity. But because Nike is in good faith and believes him to be 15, there is a putative title 3. BONA FIDE: Nike is in BONA FIDE 4. POSSESSION: Nike has the ANIMUS REM SIBI HABENDI over the donkey and the physical control over it by Solon. 5. TEMPUS: the ususcaption period for movable objects is 1 year. After 12 months Nike gets civil law ownership over the donkey Exercise 34 Ufen started ususcaption over the garden, but the TEMPUS for immovable objects is 2 years therefore he didn't acquire civil law ownership. The garden still belongs to Ismene. Turia doesn't have to start the ususcaption period from new, she only must possess it without interruption for another year. After six months Xerxes establishes possession over the garden. Turia looses her possession. Turia could bring a ACTIO PUBLICANA against him, as she is the bonitarian owner, but she doesn't. When Xerxes died and Turia returned to the garden she cannot start ususcaption of it because she has no BONA FIDE. She knows that the garden belongs to Ismene. After the whole time Ismene owned the garden and can demand it back by REI VENDITIO. Turia could have got the garden back from Xerxes by ACTIO PUBLICANA and then she would had become the owner of it. Heruntergeladen durch Le Ba ([email protected])