roman-property-of-law-revision.pdf

lOMoARcPSD|29311869 Roman Property of Law - Revision Roman Law of Property (Universität Wien) Studocu wird von keiner Universität gesponsert oder unterstützt. Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 Roman Law of Property: Revision Origins and Basic Concepts of Civil Law I Benke/Meissel I. introduction 1. What does property law deal with? Roman Property Law deals with the right to hold power over corporeal objects by legal subjects. things deﬁned as objects that can be touch (corporeal) attributing legal objects to legal subjects; legal transactions ABGB: everything that diﬀers from and is subject to use by humans is in the legal sense called a thing 2. What are subjects and objects of law objects of law: things (res), corporeal subjects of law: anyone capable of rights and duties 3. What is meant by legal personality? What is legal capacity? legal personality: the capacity (Vermögen, Fähigkeit) to hold rights and duties can be natural persons or legal entities (groups of natural persons, assets) legal capacity: the ability to enter into binding legal contracts and to aquire rights and to assume obligations through one‘s own action (to amend) demands a degree of majurity both in terms of age and mental abilities —> capacity to act: transactional capacity, aquire rights and incur obligations through legally binding actions (particular entering into legal contracts) —> criminal capacity: to be accountable for illegal actions 4. In what ways is Roman law different from modern law when it comes to a person‘s capacity to rights and duties? Roman law has diﬀerent age treshhold today all human beings are held to be equally capable of rights and duties in roman times the legal status of a person was determined by a complex interplay of factors liberty/citizenship/position within the family hierarchy/gender Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 5. What are the different aspects of capacity? capacity to act: transactional capacity that is the capacity to acquire rights and incur obligations through legally binding actions, particularly by entering into legal contracts criminal capacity: capacity to be accountable for illegal activities and to be held liable for damages 6. Who is under paternal or marital power according to Roman Law? Are these persons (always) unfree? infants: lack legal capacity patria potestas (paternal power) children are in the power of the father of the house —> born in marriage, adopted children, legitimate oﬀspring of sons still in patria potestas grown up children can still remain in their fathers inﬂuence —> released through legal means (emancipation), or come into the patria potestas of another family (marriage) the wife in case of a manus marriage (marital power?) legally they are very restricted, though it was sometimes the case (marital power, manus) that it was a mere formality slaves were regarded as property/things and not under power 7. What is a legal entity? to what extent does Roman law recognize this concept? legal entities: capable of holding rights modern law —> natural persons (human beings) and —> legal entities: groups of natural persons (eg corporations, associations…) and assets (eg foundations, trusts) roman law (similar lines) —> independent legal entities: certain groups of people (eg corporations - universitates, associations - collegia, sodalitates) and assets —> legal rights (did not accure to its members) and through representatives legal transactions (individual members not bound by obligation) Ulpian D 3.4.7.1 8. Which age thresholds are important when it comes to assessing a person’s capacity according to Roman law? infantes: up to seven years —> lack capacity under age persons: boys 7-14, girls 7-12 —> limited capacity majority: boys 14, girls 12 —> full capacity minors: below 25 —> special protections lex plaetoria Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 9. What other aspects must be taken into consideration in this regard? women, mentally disabled people, special protections (below 25), declared legally incapable, tutors consent 10. What is negotium claudicans? limping transaction if an under-age person without their tutors consent enters into a contract that entails reciprocal rights and obligations only the part of the transactions which confers rights on the pupillus is valid, while obligations incurred by the child do not become legally binding 11. What are specific features of property rights? rights pertaining to the object itself (is aimed directly at the thing itself is absolute (has to be respected by all other members of the legal community) —> enforceable against everybody - actiones in rem 12. What is the legal significance of the distinction between corporeal and incorporeal things? romans: power over an object only conceivable in relation to corporeal things things that can be touched qui tangi possunt 13. Which property rights are there? diﬀerentiation according to scope and amount of power they confer • ownership - dominum, proprietas actio in rem: rei vindicatio • servitudes - servitutes actio in rem: vindicatio servitutis • pledge/lien - pignus actio in rem: vindicatio pignoris (= actio pigneraticia in rem) • emphyteutic lease - emphyteusis right to cultivate another‘s land for one‘s own provit, and to bequeath this right to one’s heirs actio in rem: rei vindicatio utilis • hereditary building rights - superﬁcies the right to erect and maintain a building on another‘s land, and to bequeath it to one‘s heirs actio in rem: actio de supervicie 14. What do we mean when we speak of the „numerus clausus of property rights“? impossible to add to these property rights through individual legal transactions the number of rights in rem is limited (only trade with existing possible) Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 II. possession 1. What is possession? factual control over an object coupled with the intention to control it relationship between persons and things fact rather than right (who has factual control?) 2. What are prerequisites of possession? animus: intent to possess animus possidendi intention of having something for oneself corpus: control over an object corpore possidere physical exercise of power over an object or the object is merely located within a person’s sphere of inﬂuence (realistic, physical proximity) 3. What role does possession play in regard to rights in rem? possessor (has an object in his power) is in an dispute over an asset in the stronger position: he is only obliged to hand over the object once the claimant has proven his right to it in several cases, de facto possession provides the basis for the acquisition of a real right (title) to the asset: • if someone is given possession of an object traditio, he acquires ownership of the object provided he receives it from an authorised person on the basis of a valid legal transaction • if someone takes possession of an ownerless object occupatio, he becomes its owner • if someone has received an object from an unauthorised person, he acquires ownership by means of qualiﬁed possession aver a ﬁxed period of time usucapio 4. What is the function of the exceptio vitiosae possessionis? denies interdictive protection to the iniustus possessor (restitutory or prohibitory) 5. In what way can the protection of possession be regarded as relational? iusta possessio is prerequisite for interdictive protection, but only considered in relation to the parties involved, not objectively —> protection of property is relational (alter ab altero) eg a thief is in the iusta possession of the stolen object in relation to everybody except the person, that he stole from 6. What proprietary possession, what is natural possession? proprietary possession: possession which is based in the intention of having an object to oneself —>animus rem sibi habendi natural possession: a holder who is sui iuris and who exerts control over an object with the intention of holding it for another rather than himself the holder can either be a free man or a slave Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 —> animus rem alteri habendi 7. Who is a detentor, who a possessor’s agent? holders sui iuris holder neither a slave nor in the possessor’s martial or paternal power relationship is called detention typical detentors: tenants, leaseholders, lessees (Mieter), depositaries, persons who have precarious possession of an object holders alieni iuris holders who are in the possessor’s power alieni iuris are possessor’s agents, not detentors a person who is in someone else’s power is merely the extended arm of their dominus if their dominus makes use of his extended arm, he has immediate rather than mediate possession of the object and is thus in control 8. Under which circumstances is civil possession of importance? possession resulting from a valid title iusta causa any legal transaction that aims at the transmission of ownership eg sale, donation, loan, grant of a dowry dos qualiﬁcation which strenghtens the legal position of the de facto possessor of an object better position legally speaking than someone without civil possession 9. What is the aim of possessory interdicts? How do they achieve these goals? decrees issued in individual cases by the praetor (Rome’s highest ranking judiciary oﬃcial) prevent dispossession or unauthorised infringement on other’s people property goal: stop imminent or open conﬂict (property dispute) iusta possessio is prerequisite for interdictive protection, but only considered in relation to the parties involved, not objectively —> protection of property is relational (alter ab altero) temporary measure exceptio vitiosae possessio denies interdictive protection to the iniustus possessor prohibitory indirects: prohibit the use of force against the iustus possessor (to seize the property) praetor: vim ﬁeri veto I forbid the use of force under certain circumstances, violence to ﬁght of the aggressor is permitted iniustus possessor is not protected againts uses of force (to take back the property) restitutory indirects: order his adversary to restore his property praetor: restituas you shall restitute nobody can demand restitution of an object he himself has obtained vi, clam or precario oﬀers also protection to a number of natural possessors: emphyteutic lellees, grants of precarium, pledges and sequesters (person with whom litigants may deposit property at issue in a lawsuit, and who is obliged to hand it over to the winning party) defend their possession of objects in their custody, or to regain possession of them if lost Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 10. What is the position of a thief as regards his possession of the stolen object? someone appropriates an item of value wich the take knows to belong to another person • thief - fur acts with larcenous intent (ie the intent to enrich himself by knowingly taking someone else’s property criminal intent - dolus malus dolus isone of the necessary elements of furtum • intent is tantamount (gleichbedeutend) to animus rem sibi habendi intent to possess something in one’s own name only leads to furtum if it maifests itself in an external act of taking —> both elements of acquiring possession are fullﬁled: animus and corpus —> thief has become possessor • theft only possible in relation to a moveable object legal consequences of unlawful appropuiation of immoveable property similar 11. Which actions can be brought on the basis of a furtum? What is their goal? victim of a furtum: two discrete actions • actio fuerti - penal action (strafbar, strafrechtliche Handlung) right to impose a penalty on the oﬀender penalty payable to the victim furtum maifestum (open theft): thief has to pay four times the value of the stolen object furtum nec manifestum (secret theft): twice its value • condiction fuertiva - aims at recovery of property reipersecutory action recovery of the stole n object or its value limited to recovery from the thief himself third parties in possession, but not involved in the theft cannot be prosecuted —> not an action in rem succeds even if the thief is no longer in possession of the object, or it no longer exists • rei vinidcatio - alternative mean by which the owner can recover stolen property can be brought against anyone in possession of the stolen object can only be brought as long as the object still exists • cumulation of actions penal and reiprsecutory actions can be brought in conjunction in case of furtum it is possible to cumulate actio furti and conductio furtiva condictio furtiva and rei vindicatio cannot be cummulated (bot reipersecutory) 12. Explain the terms dolus in the context of furtum. dolus (malus) - criminal intent a thief’s actions are dolose, he acts with larcenous intent, ie the intent to enrich himself by knowingly taking someone else’s property Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 III. the acquisition of possession - I. 1.What is the difference between contract and conveyance? contract: agreement which creates the obligation to transfer property gives one person (the creditor) a claim against another person (the debtor) for speciﬁc actions to which the debtor has committed himself contract concerning the cause of a conveyance conveyance: transfer of the property right itself legal act which alters the scope of a legal right or its attribution mostly by delivery (traditio)—> acquisition of possession part of the conveyance —> intention to be party of a contract (intent to purchase ≠ animus possidendi, agreement) ≠ intention to acquire something through conveyance (intent to take possession = animus possidendi, delivery/transfer of possession) A contract gives one person (the creditor) a claim against another person (the debtor) for speciﬁc actions to which the debtor has committed himself. Essentially a contract is an agreement between two parties concerning the cause of a conveyance. a conveyance is a legal act which alters the scope of a legal right or its attribution. For instance, the creation of a limited right in rem leads to a redistribution of power over an object. If a right is transferred to another person, this brings about a change of attribution. 2. Can a pupillus acquire possession in his own name? no since he lacks the legal capacity to form a legally relevant possessory intent does not possess suﬃcient understanding needs tutors assistance In Rome only a person sui iuiris has the right to acquire possessionin his own name. A pupillus who is in another‘s power (pater potestas) can not acquire possession inhis own name. 3. What role does a social environment play when it comes to acquiring possession? if there is a high chance of a third party interrupting the act of establishing control —> jurist demand a more manifest act of taking control —> e.g. grasping the object instead of just the possibility of taking control (Since the acquisition of possession and property rights are often closely connected, the legal system only grants the ability to form a legally relevalnt possessory intent to persons who possess a suﬃcient degree of understanding ie legal capacity).) A person is legally capable if they can make legally binding changes to their rights and obligations by their own actions. Minors (pupilli) and mentally hanicapped people (furiosi) are largely excluded from performing legally relevant actions because of their restricted mental capacity. In isolated cases, a pupillis may be suﬃcient mature to forma calid animus possidendi on his own, without his tutor‘s assistance. 4. Does the will to buy something count as animus possidendi? no, the intent to purchase something or be party of a contract does not count as animus possidendi animus possidendi: intent to take possession Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 actual delivery/ transfer of possessio Only the intention to take possession of something counts as animus possidendi. 5. Can possession in Rome be transferred by symbols? no it is impossible to transfer possession by symbols or purely by ﬁctional modes of transfer (traditio ﬁcta) or written documents (traditio per cartam) Roman jurists recognise neither the transfer of possession through symbols or documents (traditio per cartam), nor any other form of ﬁctive transfer (traditio ﬁcta). 6. What does oculis et afectu mean? acquiring possession in the presence of the object (ﬁeld of vision, sphere of control) physical control not necessary (agreement on immediate transfer of possession) rather than corpore et tactu: touching the object If buyer and seller in the presence of the goods agree on the immediate transfer of possession, the buyer acquires possession without the necessity of further action. 7. What role can the delivery of keys play when it comes to transferring possession? Paulus D41.2.1.21 (Case 4): if buyer and seller in the presence of the goods agree on the immediate transfer of possession, the buyer acquires possession without the necessity of further action dispenses (verzichtet) of the necessity of physical control (corpores et tactu) it is suﬃcient that the object has entered the buyer’s ﬁeld of vision and sphere of control: oculis et aﬀectu (in the presence of the object) —> the seller hand over to the buyer of some wine the keys to the cellar where that wine is stored (happened at the wine cellar or oculis aﬀectu does not ﬁt) Papinianus D 18.1.74 (Case 5): the buyer of goods stored in a warehouse acquires possession of them as soon as he is given the keys, provided the handover takes place at the warehouse Gaius D 41.1.9.6 (Case 6): acquisition of possession (and ownership) of goods stored in warehouses by means of delivery of the keys to the warehouse (classical period) —> ﬁrst interpretation: possible reader has to assume the exchange takes place in the vicinity of the good (the text does not state it) if it is the case: same opinion as Case 5 —> second interpretation: keys themselves aﬀord the buyer a suﬃcient degree of corpus, it is immaterial whether the handover happens in the presence of the goods themselves maybe if the warehouse are securely locked and the keys are the only means of gaining access There are four cases in which possession is acquired oculis et aﬀectu. One of them is when the seller hands over to the buyer some wine, the keys to the cellar where the wine is stored.The keys have been handed over at the wine cellar. 8. What happens during a traditio, how is this carried out? traditio: transfer of proprietary possession (physical act) Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 derivative: modes of acquiring possession which rely o the assistance of the previous possessor, who transfers control over the thing and this possession of it to his successor —> traditio is a legal act which involves the transfer of property from the transferor to the transferee; the transferor delivers an object in his possession to the transferee, who aquires derivative possession of the object upon receipt —> succeeds into to the previous possessor’s position (well established, universally accepted) In order for a traditio to take place, there has to be agreement between the parties that the delivery is to result in the transfer of possession; on the transferee‘s part, this ﬁnds expression in the animus possidendi. 9. What are the differences between original and derivative modes of acquiring possession? original: modes of acquiring possession which may be eﬀected exclusively by a person’s own actions, without the aid of the previous possessor —>act of occupatio: taking possession (and ownership) of an asset that is in nobody’s possession and ownership (res nulius) —> a thief acquires original possession, status as possessor through his own actions, but he never acquires ownership (furtum) —> position of possessor has to be newly created derivative: modes of acquiring possession which rely o the assistance of the previous possessor, who transfers control over the thing and this possession of it to his successor —> traditio is a legal act which involves the transfer of property from the transferor to the transferee; the transferor delivers an object in his possession to the transferee, who aquires derivative possession of the object upon receipt —> succeeds into to the previous possessor’s position (well established, universally accepted) Original describes those modes of aquiring possession which may be exclusively by a person‘s own actions, without the aid of the previous possessor. Derivative describes those modes of acquiring possession which rely on the assistance of the previous possessor, who transfers control over the thing and thus possession of it to his successor. 10. What is immoveable property? What influence does this have on the acquisition of possession? immovable property cannot disappear and is in this regard easier to control than moveable property (constant danger of being removed from the potential acquirer’s ﬁeld of vision or sphere of inﬂuence) —> immoveable property: plots of land, buildings with solid foundations, plants rooted in soil impossible to steal, no furtum of immovable objects —> everything else regardless of weight/bulk is moveable property Immoveable property cannot disappear ans is in this regard easier to control than moveable property, which runs the constant danger of being removed from the potential acquirer‘s ﬁeld of vision and sphere of inﬂuence. Exercises (1a): contract is concluded on the Forum Romanum, Bellona has the intent of buying the garden Bellona acquires the possession of the garden when she steps foot on it (one week later) Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 To acquire possession animus and corpuso are necessary. Animus is given when someone has the intent to possess something in their own name. Corpus demands factual control over the object. This can consist either of direct control over a thing or of a very strong possibility of establishing physical contact with it. When Bellona inspects Ago‘s garden she has neither animus possendi nor corpus, so there is no acquisition of possession yet. When they meet on the Forum Romanum 2 days later, they conclude a contract of sale (emptio venditio). The contract of sale is concluded as soon as agreement concerning the item to be sold and its price has been reached. At this moment Bellona has animus possidendi, but has no corpus over the garden yet (no acquisition of possession yet). Bellona acquires possession of the garden only 1 week later when she enters the garden. (1b): During the agreement of the sale as the property is the neighbouring garden of Bellonas estate and it is within her ﬁeld of vision (sphere of inﬂuence) they are standing on the veranda of the bellona’s mansion (owner and possessor) gardem: immoveable object, easier to control When Bellona inspects Ago‘s garden she has neither animus possidendi nor corpus, so there is no acquisition of possession yet. In this variant Ago and Bellona meet in Bellona‘s mansion, which abouts Ago‘s garden. They conclude a contract of sale. The contract of sale is concluded as soon as agreement concerning the item to be sold and its price has been reached. At this point Bellona has animus possidendi and she has corpus as well. According to Celsus it is enough for the buyer to acquire possession of a piece of land if the seller with intention of transerring possession shows it to the buyer from the neighbouring property, which is already in the buyer‘s possession (The main consideration seems to be that he can easily extent his sphere of inﬂuence onto the neighbouring estate that he wants to acquire.) It is irrelevant in this case that Bellona sets foot on the garden only a week later because she already acquired possession of it. (2): —> late republican period yes, as the act of sealing the barrel and declaring it has his is a clear indication of the buyer’s animus possidendi (intent to possess) —>late classical period probably yes but only because of his clear declaration of animus possidendi and all other coditions of a transfer of possession (ownership) are met: iusta causa, vendor has authority of disposal To acquire possession animus and corpuso are necessary. Animus is given when someone has the intent to possess something in their own name. Corpus demands factual control over the object. This can consist either of direct control over a thing or of a very strong possibility of establishing physical contact with it. They conclude a contract of sale. The contract of sale is concluded as soon as agreement concerning the item to be sold and its price has been reached. In this case corpus in unproblematic. Through Carus‘s declaration (This wine is now mine.) his animus possidendi is expressed and he acquires possession. The question is whether Carus would have acquired possession if he would have sealed the barrels secretly. Does this constitute an animus possidendi? Earlier Jurists nsee this as a clear indication of the buyer‘s animus possidendi. Ulpian and Labeo claim that this was done only to prevent a substituition of wine at a later point, but that does not indicate the buyer‘s intention to acquire possession of the wine at that moment. (3): no since social environment (busy market place, high risk of interference of third parties) requires a manifest act of establishing control (e.g Felix taking the sack into his hands) and the sack is a moveable object appearance probably is irrelevant since it is not clear from looking at the sack that money is in it Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 it is unclear if Felix noticed the sack before it got stolen (assumption not) Possession is acquired corpore et animo. In this case, the fact that Felix did not notice the money being placed is signiﬁcant. Felix could not form an animus because he did not know that Europa had placed the money at the table and she did not put the money in his ﬁeld of vision. Felix therefore has not acquired possession. (4): —> upon delivery —> two separate transactions: Helena buying the statue and acquiring possession and then asking Stilo to hold it for her (Stilo exerts contol over the statue in Helenas name, does not want to possess it in his own name, detentor) Helena: mediate proprietary possession Stilo: immediate natural possession To acquire possession animus and corpuso are necessary. Animus is given when someone has the intent to possess something in their own name. Corpus demands factual control over the object. This can consist either of direct control over a thing or of a very strong possibility of establishing physical contact with it. Helena and Stilo conclude a contract of sale (emptio venditio). The contract of sale is conluded as soon as an agreement concerning the item to be sold and its price has been reached. In this case animus is unproblematic. Helene nexpressess her animus possidendi by telling Stilo she wants to take the statue with her immediatly. They agree about the immediate transfer of possession in the presence of the object. Helene acquires oculios et aﬀectu possession of the statue, because it entered into her ﬁeld of vision and sphere of control. When Helene asks Stilo to keep the statue for her, Stilo becomes her detentor. He has animus rem alteri habendi, he holds the object for helene. The holder who is sui iuris and who exerts control over an object with the intention of holding it for another rather than himself has natural possession. Stilo has immediate natural possession. Helene has animus rem sibi habendi and she has mediate proprietary possession of the statue until she fetches it from Stilo. (5): —> against: in the neighbour’s wood without his permission, Japyx does not persue the animal, Japyx has not yet laid his hands on the animal and a lot of things might still happen (interference of third parties) quia multa accidere possunt, ut eam non capiamus —> for:in the neighbour’s wood with his permission, Japyx pursues the animal, the deer is dead an cannot break free and can easily be captured To acquire possession animus and corpus are necessary. In this case animus ís unproblematic but the element of corpus is questionable. For acquiring possessioon: He has suﬃcient corpus because he wounded the deer to such a degree that it can be captured. The deer cannot free itself because it has already died. We can argue that he has suﬃcient degree of control over the animal. Against acquiring possession: It is not guaranteed that a third party does not come by and fetches the deer before him. It is also problematic that he laid his trap on someone else‘s property against the landowner‘s consent. There is a risk of interference by third parties. We can argue that he has no suﬃcient control over the deer. In this case we shoud say that corpus is not given because this is an original mode of acquisition and by this the element of corpus should be viewed stricter than in case of acquisition of possession by derivative means. Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 (6): leo acquires possession of the money as soon as Kassandra lays down the money on his orders in font of him; possibility of taking control quodammodo manu longa traditia (as if transmitted by a long hand) no clearly deﬁned legal concept Kassandra acts as a detentor of the money while delivering it the ﬁef is the possessor after stealing it To acquire possession animus and corpuso are necessary. Animus is given when someone has the intent to possess something in their own name. Corpus demands factual control over the object. This can consist either of direct control over a thing or of a very strong possibility of establishing physical contact with it. In this case animus is unproblematic. Leo has animus possidendi. Corpus is given as well. Kassandra lays down the money in front of Leo. The money entered into his ﬁeld of vision and sphere of control and he has a very stron possibility of establishing physical contact with id. Leo acquires ocilus et aﬀectu possession of the money. They agree in the presence of the goods on the immediate transfer of possession. When Leo asks Kassandra to take the money to the ship owner, Kassandra becomes the detentor of Leo. Kassandra has animus rem alteri habendi, she holds the money for Leo. The holder who is sui iuris and who exerts control over an object with the intention of holding it for another rather than himself has natural possession. Kassandra is the immediate natural possessor of the money. Leo has animus rem sini habendi. He has mediate proprietary possession until Kassandra gives the money to the ship owner. But on the way to the ship owner Kassandra is assaulted by robbers, who take the money. The robbers acquire original possession of the money, since they obtain the status of possessors by their own action rather than by the previous possessor‘s aid. Animus and corpus are unproblematic. (7): a contract (agreement) was made, but the transfer of property rights (conveyance) between Nike and Orion never took place. Orion never set foot on the property or was in the vicinity of it (ﬁeld oﬀ vision). Philo declared himself possessor and has control over it (building a house) two years later To acquire possession animus and corpuso are necessary. Animus is given when someone has the intent to possess something in their own name. Corpus demands factual control over the object. This can consist either of direct control over a thing or of a very strong possibility of establishing physical contact with it. In this case animus is unproblematic. Orion has animus possidendi, he wants to acquire property. There is a problem with the element of corpus. Due to the fact that Orion has never set foot on the property, he has never established physical contact with it and he has never acquired possession of it. Philo acquires original possession of the property, since he obtains the status of a possessor by his own actions rather than by the presious possessor‘s aid. Corpus is given, he moves onto the empty piece of land., His animus possidendi is expressed through buiding a house there. (8a): Quartus becomes possessor and owner during the handover of the keys as it happened in the vicinity of the warehouse and the keys are means of gaining access To acquire possession animus and corpuso are necessary. Animus is given when someone has the intent to possess something in their own name. Corpus demands factual control over the object. This can consist either of direct control over a thing or of a very strong possibility of establishing physical contact with it. In this case ther is agreement in the presence of goods on the immediate transfer of possession. Quartus has animus possidendi due to the contract of sale and by receiving the key the goods enter into his sphere of control so corpus is given as well. Quartus acquires possession of the things he bought the momnent he receives the key infront of the warehouse. The buyer of goods stored in a warehouse acquires possession as soon as he is given the keys, provided the Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 handover takes place at the warehouse. Quartus acquires oculis at aﬀectu possesion of the things. If the buyer and the seller in the presence of the goods agree on the immediate transfer of possession, the buyer acqiuires possession without the necessity of further actions. (8b): no since he was not given access to the warehouse Quartus does not acquire possession because even though he received the key, it does not ﬁt the lock, which means that he cannot gain access to the goods and he has no control over them. Corpus is not given. Isemene remains the possessor of the things in the warehouse. (9): Victor acquires possession from Niobe upon delivery of the hive Valerian has immediate natural possession upon renting the estate with the hive (detentor, holder sui iuris)) Victor as mediate proprietary possession To acquire possession animus and corpuso are necessary. Animus is given when someone has the intent to possess something in their own name. Corpus demands factual control over the object. This can consist either of direct control over a thing or of a very strong possibility of establishing physical contact with it. Victor has animus possidendi, he wants to enter the honey buisness so he wants Niobe to deliver a suitable hive to him. Corpus is given when one week later Niobe delivers the hive to Victor. Victor acquires corpore et animo possession of the hive. When Valerian rents the estate he has natural possession of the hive. He is the holder of the hive, he is the immediate possessor of it and he has animus rem alteri habendi. Victor has mediate proprietary possession, he has animus rem sibi habendi. Even though it is Valerian who exerts control over the hive, Victor wants to possess it and has the control over it through Valerian. Valerian does not want to possessit in his own name. Victor remains the possessor of the hive. (10): Ramses possesses the horse Juno has immediate natural possession upon borrowing the horse (detentor, holder sui iuris)) Ramses has mediate proprietary possession thief has possession To acquire possession animus and corpuso are necessary. Animus is given when someone has the intent to possess something in their own name. Corpus demands factual control over the object. This can consist either of direct control over a thing or of a very strong possibility of establishing physical contact with it. In this case Juno borrows the horse from ramses. Juno is the detentor/holder of the horse, he does not want to hold it in his own name, he has animus rem alteri habendi. He has immediate natural possession of the horse. Ramses has animu rem sibi habendi. He has mediate proprietary possession of the horse. Ramses exerts control over the horse through Juno. Tiro steals the horse from Juno. He commits furtum because he takes a moveable property belonging to another person eith the intent to enrich himself. Tiro acquires original possession of the horse, since he obtains the status of possessor by his own actions rather than be the previous possessor‘s aid. Animus ans Corpus are unproblematic. Vibada acquires derivative possession of the horse by buying it. Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 III. the acquisition of possession - II. 1. What are the prerequisites for the acquisition of possession by persons alieni iuris? persons who are in somebody else‘s power are incapable of holding property cannot have rights in things (lack legal capacity in this regard) cannot acquire possession in his own name can acquire possession in the name of his dominus —> dominus does not establish control over the thing by his own physical actions —> possession is acquired animo nostro, corpore alieno sons ﬁlii, daugthers ﬁliae of the house; wives in manus marriages uxores in manu: in fathers power male and female slaves servi et servae: in owner‘s possession the dominus can express his animus in two ways: —> by issuing a iussum he orders the person in his power to make one particular transaction —> by granting the person in his power a peculium he gives that person a general authorisation to acquire possession within his framework (manage certain assets independently, branch oﬃce) possessory intent in general, abstract terms animus has to be concretisised for each transaction (peculium holder has to do this) extents to all transactions the peculium holder makes acquisition animo servorum —> if the dominus gives permission afterward (ratihabito), has to be treated as if he has given a iussum beforehand —> for the alieni iuris to acquire corpus only intellectus possidendi is required 2. How is possession acquired by direct/indirect agency? direct agency: the agent acquires possession in the name of his dominus, on which behalf he is acting indirect agency: two separate transactions, person who is sui iuris acquires possession of an item another person wants and then transfers the possession of the object to the other person 3. What is a peculium? What role does this play when it comes to acquiring possession? by granting the person in his power a peculium he gives that person a general authorisation to acquire possession within his framework (manage certain assets independently, branch oﬃce) possessory intent in general, abstract terms animus has to be concretised for each transaction (peculium holder has to do this) extents to all transactions the peculium holder makes acquisition animo servorum peculium: general authorisation to acquire possession dominus may acquire possession without having knowledge of the individual transactions —> even persons who have not themselves granted the peculium may acquire possession in this way (might not be able to rescind (widerrufen) it because they lack legal capacity): infans (e.g. father granted it before his death), furiosus (e.g. granted it himself while still of sound mind). heres (heir, inherited a slave to whom a peculium has been granted) Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 4. What is a constitutum possessorium? constituitio possessorium: possessory agreement modes of acquisition solo animo: emphasis lies on the consensus between the parties concerned element of animus gains grater importance based on agreement between the parties involved buyer neither has the goods in hand, nor acquires immediate possession of them possession is acquired if someone developds animus rem sibi habendi in regard to a thing not in his possession and then arranges for the possessor or detentor of that object to hold it in the buyer‘s name in future 5. Under which circumstances can persons sui iuris acquire possession for another? exceptions allows persons that are sui iuris to act as direct agents —> curator: guardian to a mentally handicapped person or a spendthrift acquires directly for the person in his care —> tutor: guardian to a minor acquires directly for his ward —> procurator: steward, agent acquires directly for his master (in the same way as through a slave in his possession) dependent on his dominus, usually former slaves who had been liberated by their master bound to master by a number of legal obligations —> emperor Justinian (6th century AD) opened possibility of direct agency in regard to the acquisition of possession by persons sui iuris 6. What does animo nostro corpore alieno mean in regard to the acquisition of possession? —> dominus does not establish control over the thing by his own physical actions —> possession is acquired animo nostro, corpore alieno —> acquisition of possession by persons alieni iuris 7. How is possession acquired by traditio brevi manu? —> traditio brevi manu (delivery by a short hand) brevi manu: describes the way a detentor may acquire possession by arrangement with the possessor the parties concerned agree that the possessor who wants to transfer his property to the detentor gives up his animus rem sibi habendi (possession which is based in the intention of having an object to oneself) the detentor who aspires to become the new possessor from now on with the former possessor‘s permission intends to hold the asset in his own name the acquirer already has the asset in his custody because of his former role as detenter fulﬁls the requirement of corpus Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 8. To what extent can possession be acquired animo servorum? —> by granting the person in his power a peculium he gives that person a general authorisation to acquire possession within his framework (manage certain assets independently, branch oﬃce) possessory intent in general, abstract terms animus has to be concretisised for each transaction (peculium holder has to do this) extents to all transactions the peculium holder makes acquisition animo servorum 9. How does the position on the possibility of acquiring possession with the help of third parties of Roman law up to the late classical period (early 3rd century AD) differ from that of Justinian law (early 6th century AD)? generally speaking persons who are sui iuris are not allowed to acquire possession for another (pre-classical, classical periods) —> two separate transactions (the person ﬁrst acquires possession and then transfers it to the person on whose behalf he acted, today indirect agency —> applies only to the acquisition of possession —> always possible to transfer possession to another by means of an authorised person sui iuris —> emperor Justinian (6th century AD) opened possibility of direct agency in regard to the acquisition of possession by persons sui iuris free persons may acquire possession for another: qua placet per liberam personam 10. What is the legal situation of a dominus of a person in his power accepts a thing without either a iussum or peculium? —> if the dominus gives permission afterward (ratihabito), has to be treated as if he has given a iussum beforehand 11. What is an analogy? the process of solving a legal problem that does not display the exact elements of any case recognised by law, but is generally accepted to show similarities with known cases is called analogy Exercises (11): as soon as her slave (in her power) fetches the horse on her orders (iussum) slave has possession in her name possession is acquired animo nostro, corpore alieno (12a): Gripus is in his fathers power (alieni iuris) and was issued a iussum his father has possession of both slaves as soon as the slave dealer delivers the slaves Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 (12b): no (the acquisition of the second slave is treated as if the father issued a iussum beforehand since he was satisﬁed afterwards; rathibatio) (12c): slave dealer - Gripus - Father (13): Leo has possession of both, even without the knowledge of them after they are delivered to Melitta (14): eros entreats Daphne to grant him use of her carriage —> erosacts as a detentor for daphne, holding the object in daphnes name (immediate possession; daphne: ) after present eros aquired possession by arrangement with daphne (brevi manu) eros already fulﬁlled requirement of corpus (15):Nike sells to Orin —>Orion becomes possessor slave is his agen (holders alieni iusris) Orion believes nikes fraudulent claim to be its owner or at least entitled to dispose of it Orion later ﬁnds out the object belongs to Pius Orion rents the ox from Pius —> Orion becomes Pius detentor, because Pius has expressed his intent to possess the object for himself, Orion acknowledged the claim —> Pius acquires possession of the object through Orion, who exerts corpus on Pius behalf (16): Kassandra has possession since she is presumably sui iuris and set foot on the property until the lease agreement where she acknowledges Japyx possession Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 IV. retaining possession, losing possession 1.According to which criteria do we assess the retention of possession of moveable objects? What about immoveable objects? requires the elements of animus and corpus possession ends when the possessor gives up his possessory intent or loses all factual control over the object less strict than when it comes to acquisition solo animo: for a limited amount of time possible to retain possession after the complete loss of corpus eg. servus fugitivus, immoveable property possession is retained only where there is custodia (custody, control) exception: servus fugitivus possession of movable objects is retained as long as they are within the possessor’s sphere of inﬂuence factual control over the asset is sometimes termed custodia custodia exists where a person exerts control over an object to the extent that they can at any time lay hands on it or bring it into their immediate sphere of inﬂuence possessors can retain possession of immovable objects corpore et animo or solo animo solo animo: originally only for seasonally cultivated land beginning of classical period: accepted for all types of land not indeﬁnitely, likely possession lost when they failed to return as planned when detentors or possessor’s agents cease to fulﬁll the task entrusted to them, ie to maintain factual control over an asset, this does not mean that the possessor immediately loses possession —> when detentors or possessor’s agents die or leave the property, the possessor retains his possession solo animo likely only as long as it takes the possessor to be informed of the state of aﬀairs and to take measures to reestablish corpus —> when detentors or possessor’s agents become mentally ill or exert factual control over the property through another person (eg a sublessee), this does not aﬀect the possessor’s status a detentor developing animus rem sibi habendi without acting has no eﬀect —> when the detentors or possessor’s agents are driven oﬀ property by force possessio is lost immediately presumably because this constitutes a drastic, radical interruption of the state of aﬀairs 2.To what extent are the acquisition of possession on the one hand and its retention on the other assessed according to similar criteria? What are the differences? What tendencies can you observe in Roman views on retaining possession? there are less strict standards for retaining possession compared to the acquisition of possession reason is likely that the roman jurists wanted a stable system since a change of possession could lead to a change of ownership Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 possession was only lost if the change seemed to be permanent and not just temporarly 4. What does it mean to retain possession solo animo? How long can possession be retained in this way? solo animo: for a limited amount of time possible to retain possession after the complete loss of corpus eg. servus fugitivus, immoveable property as long as the new possessor does not seem to be permanent 5. What are the options open to someone who comes home to find his house occupied by another, and fails to evict the intruder by force? When A occupies B’s land without authorisation and with the intent to acquire possession he has both animus and factual control over the land but he does not immediately acquire possession if B regains control over his property, then there is no change in possession (B remained possessor throughout) if B does not try or the attempt to regain control failed, A acquires possession B is free to regain possession by means of legal remedies possessory actions: interdictum uti possidetis, interdictum unde vi petitory actions: actio publiciana, rei vindicato 6. In what way is possession affected when detentors or possessor‘s agents are driven off the property by force? when detentors or possessor’s agents cease to fulﬁll the task entrusted to them, ie to maintain factual control over an asset, this does not mean that the possessor immediately loses possession —> when the detentors or possessor’s agents are driven oﬀ property by force possessio is lost immediately presumably because this constitutes a drastic, radical interruption of the state of aﬀairs 7. In what way is possession affected when detentors or possessor‘s agents cease to fulfil their role exerting control on the possessor‘s behalf? when detentors or possessor’s agents cease to fulﬁll the task entrusted to them, ie to maintain factual control over an asset, this does not mean that the possessor immediately loses possession —> when detentors or possessor’s agents die or leave the property, the possessor retains his possession solo animo likely only as long as it takes the possessor to be informed of the state of aﬀairs and to take measures to reestablish corpus —> when detentors or possessor’s agents become mentally ill or exert factual control over the property through another person (eg a sublessee), this does not aﬀect the possessor’s status a detentor developing animus rem sibi habendi without acting has no eﬀect —> when the detentors or possessor’s agents are driven oﬀ property by force possessio is lost immediately presumably because this constitutes a drastic, radical interruption of the state of aﬀairs Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 V. ownership 1. How does the Austrian Civil Code (ABGB) define ownership? §354 ABGB: Regarded as a right, ownership is the entitlement to avail oneself of the substance of a thing and its uses at will, and to exclude others from it. ownership: the most comprehensive right in roman law 2. Ulpianus in D 41.2.12.1: nihil commune habet proprietas cum possessione (ownership and possession have nothing in common). To what extent is this claim true, to what extent is it somewhat exaggerated? 3. What is the action that a dispossessed owner may bring against a possessor who has no right of ownership? Where would you find it in the Austrian Civil Code? iustus possessor protected by interdicts oﬀer temporary remedies against interference with and seizure of possession also available to the owner if he as a iustus possessor is aﬀected temporarily assign possession of an object to a person rei vindicatio legal action available to the owner allows him to reclaim his property from all others who have acquired possession of it establishes who has ownership of an asset aims to clarify once and for all who is legally entitled to the object under dispute 4. What is the difference between ownership and limited rights in rem? Which limited property rights does Roman law recognise? ownership is the most encompassing of all rights in rem (full right) bot substance of an object and its uses are assigned to owner only owner is entitled to exert control over the asset limited rights in rem: grant their holders limited use of assets belonging to someone else iura in re aliena rights in another’s property —> servitus servitude beneﬁciary is entitled to demand from the owner that he permits something or abstains from doing something —> pignus pledge a ceditor who is secured by a pledge has the right to alienate an object belonging to another in order to satisfy outstanding debt —> superﬁciarius beneﬁciary of a right to build on another’s ground may do so and make exclusive use of the building curtail the owner’s right; he must refrain from preventing the beneﬁciaries from using his property Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 5. What does ius cogens mean? Give examples! mandatory law: provision that cannot be superseded by private agreement ius cogens owner has a certain degree of responsibility; ensure his property doesn’t cause damage to others examples: • donations between marriage partners • building regulations (for example forbidden to built higher than 70 feet/21m) • may not neglect his property to the extent that it threatens to tumble dow and damage buildings next to it • restrictions to safeguard neighbours interests legal servitudes: servitudes which the legal system imposes on the property owner 6. What rights does the owner have? • entitled to use his property and to prevent all others from using it entitled to grant others the right to use his property • entitled to avail himself from all fruits his property yields fruits are perennial (mehrjährig) yields that are derived or produced from the designated use of an object; the fruits primarily belong to the owner of the object 2 categories: —> those which are derived from an object by natural means fructus naturales (eg fruits and vegetables) —> those which arise from legal transaction fructus civiles (eg rent deriving from a lease) • entitled to aﬀect the substance of his property he can modify, process or destroy it • entitled to grant others limited rights in his property • entitled to alienate is property ie to transfer his right of ownership to another person after the transfer (conveyance) the acquirer has become owner of the property the vendor has lost all rights in it • entitled to authorise another person to transfer ownership to a third party someone who is not himself owner of the object in question can validly dispose of someone else’s property • entitled to rid himself of his property without transferring ownership on someone else by derelinquishing (abandoning) it dereliction occurs when the owner of his own accord gives up possession of the property with the evident intention of giving up ownership object in question this becomes a res derelicta • a slave owner has the right to free his slave as a result of this act (manumissio) the slave becomes a legal subject • entitled to assert his rights by means of legal actions in rem 7. What does power of disposal mean? • entitled to alienate is property ie to transfer his right of ownership to another person after the transfer (conveyance) the acquirer has become owner of the property the vendor has lost all rights in it • entitled to authorise another person to transfer ownership to a third party someone who is not himself owner of the object in question can validly dispose of someone else’s property • entitled to rid himself of his property without transferring ownership on someone else by derelinquishing (abandoning) it dereliction occurs when the owner of his own accord gives up possession of the property with the evident intention of giving up ownership object in question this becomes a res derelicta Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 8. What is the cautio damni infecti? 9. What are the percularities of the ancient Roman consortium ercto non cito? not part of exam cases community of heirs under the old civilian law consertium ercto non cito institution based on ancient roman inheritance law fallen out of use in classical times mentioned in Gaius Institutiones 3.154a and b a single one of them could free a slave belonging to them all a single one of them could convey ownership of an asset belonging to all of them when the father of a family dies, his daughter ﬁliae familiae and sons ﬁlii familiae and his wife uxor in manu who have hitherto been in his power, become sui iuris as sui heredes they succeed into the legal position occupied by the pater familias prior to the death of the pater familias the sui are in his power and thus incapable of holding property in their own name after his death all of them together succeed into his rights in rem ownership is jointly held, none of them hold a particular share of the property relationship of mutual trust each of the joint heirs can demand the termination and the division of the inheritance actio familiae erciscundae once consortium has been terminated, every heir becomes sole owner of his share of the inheritance 10. What are the characteristics of joint ownership (condominium)? What share of the joint property is at each of the owners‘ disposal? joint ownership under classical law condominium or communio pro indiviso each of the joint owners hold a share of the property property itself is not in fact shared out, but each of them is entitled to a share of the property rights can be established by contract eg to form a trading company societas each of the owners is free to make dispositions regarding his own share however a valid disposition over the entire property jointly owned requires the cooperation of all of them each of the owners can bring the actio communi dividundo to terminate the association and eﬀect a division of the property division possible without loss of value: part of the property assigned to each depending on the size of their quota (division in kind) division would result in loss of value: one gets the property and has to pay compensation to the others or property gets sold in an auction and the proceeds get distributed (partition by sale) 11. How can a slave be freed who is jointly owned by A and B in condominium? either A and B both agrre to free the slave, or the person who wants to free the slave as to buy the the haﬂ of the other Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 the owners consent is only valid as far as his owns share is concerned, but does not as a rule aﬀect the share of the other(s) Heruntergeladen durch Le Ba ([email protected]) lOMoARcPSD|29311869 VI. acquirining ownership - overview 1. What do derivative and original mean when we speak about modes of acquisition? • derivatively (ie deriving from the former owner’s right) • acts of transfer (conveyance) • originally (ie without the aid of a former owner) • usucaption, natural modes 2. What is a conveyance ? Which forms of conveyance does Roman Law recognise? • the owner or a person authorised by the owner my transfer ownership to the acquirer by means of a legal transaction the transaction between the vendor and acquirer is called conveyance • three types of conveyance: mancipatio, in iure cessio, traditio • the acquirer succeeds into the vendor’s positi

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