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RERVM CORPORALIVM ADQVISITIONES CIVILES. - Gaius, Institutes of Roman Law [160 AD]
Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904).
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RERVM CORPORALIVM ADQVISITIONES CIVILES.
§ 14 a. — aut mancipi sunt aut nec mancipi. | Mancipi sunt—|NA item aedes in Italico solo—|—|—NAserui|tutes praediorum urbanorum nec mancipi sunt. |
1 § 120; Ulp. 19, 1.
§ 15. Item stipendiaria praedia et tributaria nec mancipi | sunt. sed quod diximus—|NAmancipi esse—|—NAstatim ut nata sunt mancipi esse putant; Nerua uero et Proculus et ceteri diuersae scholae auctores non aliter ea mancipi esse putant, quam si domita sunt; et si propter nimiam feritatem domari non possunt, tunc uideri mancipi esse incipere, cum ad cam aetatem peruenerit, qua domari solent.
§ 16.Item ferae bestiae nec mancipi sunt uelut ursi leones, item ea animalia quae fere bestiarum numero sunt, ueluti elephanti et cameli; et ideo ad rem non pertinet, quod haec animalia etiam collo dorsoue domari solent; nam ne nomen quidem eorum animalium illo tempore 〈notum〉 fuit, quo constituebatur quasdam res mancipi esse, quasdam nec mancipi.
§ 17. Item fere omnia quae incorporalia sunt nec mancipi sunt, exceptis seruitutibus praediorum rusticorum; nam eas mancipi esse constat, quamuis sint ex numero rerum incorporalium.
§ 18. Magna autem differentia est inter mancipi res et nec mancipi.
§ 19. Nam res nec mancipi ipsa traditione pleno iure alterius fiunt, si modo corporales sunt et ob id recipiunt traditionem.
§ 20. Itaque si tibi uestem uel aurum uel argentum tradidero siue ex uenditionis causa siue ex donationis siue quauis alia ex causa, statim tua fit ea res, si modo ego eius dominus sim.
§ 21.In eadem causa sunt prouincialia praedia, quorum alia stipendiaria alia tributaria uocamus. stipendiaria sunt ea, quae in his prouinciis sunt, quae propriae populi Romani esse intelleguntur; tributaria sunt ea, quae in his prouinciis sunt, quae propriae Caesaris esse creduntur.
Inst. 2, 1, 40.
§ 22. Mancipi uero res sunt, quae per mancipationem ad alium transferuntur; undeetiam mancipi res sunt dictae. quod autem ualet 〈mancipatio, idem ualet et in iure cessio.
§ 23.Et〉 mancipatio quidem quemadmodum fiat, superiore commentario tradidimus.
§ 24. In iure cessio autem hoc modo fit: apud magistratum populi Romani, ueluti praetorem, is cui res in iure ceditur rem tenens ita dicit hvnc ego hominem ex ivre qviritivm mevm esse aio; deinde postquam hic uindicauerit, praetor interrogat eum qui cedit, an contra uindicet; quo negante aut tacente tunc ei qui uindicauerit, eam rem addicit; idque legis actio uocatur. hoc fieri potest etiam in prouinciis apud praesides earum.
§ 25. Plerumque tamen et fere semper mancipationibus utimur. quod enim ipsi per nos praesentibus amicis agere possumus, hoc non est necesse cum maiore difficultate apud praetorem aut apud praesidem prouinciae agere.
§ 26. Quodsi neque mancipata neque in iure cessa sit res mancipi
(6 uersus in C legi nequeunt)—|NA*plena possessio concessa—|NAex formula qua hi qu —|—|—|NA fructus na—|NA.
§ 27. Item adhuc i—|NA
(4 uersus in C legi nequeunt)—|NAnon fuissent—|NA
(7 uersus in C legi nequeunt) — s —|—|NA est quo nomine—|—NAere uel—|NApraedium—|NAdem ulla libera ciuitas—admo|nendi sumus— |NA esse, prouincialis soli nexum non e— |NA significationem solum Italicum mancipi est, pro|uinciale nec mancipi est. aliter enim ueteri lingua a|—NAmancipa—|NA.
RERVM CORPORALIVM ADQVISITIONES CIVILES.
§ 14 a. Things are further divided into mancipable and not mancipable; mancipable are land and houses in Italy; tame animals employed for draught and carriage, as oxen, horses, mules, and asses; rustic servitudes over Italian soil; but urban servitudes are not mancipable.
§ 15. Stipendiary and tributary estates are also not mancipable. According to my school animals which are generally tamed are mancipable as soon as they are born; according to Nerva and Proculus and their followers, such animals are not mancipable until tamed, or if too wild to be tamed, until they attain the age at which other individuals of the species are tamed.
§ 16. Things not mancipable include wild beasts, as bears, lions; and semi-wild beasts, as elephants and camels, notwithstanding that these animals are sometimes broken in for draught or carriage; for their name was not even known at the time when the distinction between res mancipi and nec mancipi was established.
§ 17. Also things incorporeal, except rustic servitudes on Italian soil; for it is clear that these are mancipable objects, although belonging to the class of incorporeal things.
§ 18. There is an important difference between things mancipable and things not mancipable.
§ 19. Complete ownership in things not mancipable is transferred by merely informal delivery of possession (tradition), if they are corporeal and capable of delivery.
§ 20. Thus when possession of clothes or gold or silver is delivered on account of a sale or gift or any other cause, the property passes at once, if the person who conveys is owner of them.
§ 21. Similarly transferable are estates in provincial lands, whether stipendiary or tributary; stipendiary being lands in provinces subject to the dominion of the people of Rome; tributary, lands in the provinces subject to the dominion of the Emperor.
§ 22. Mancipable things, on the contrary, are such as are conveyed by mancipation, whence their name; but surrender before a magistrate has exactly the same effect in this respect as mancipation.
§ 23. The process of mancipation was described in the preceding book (1 § 119).
§ 24. Conveyance by surrender before a magistrate (in jure cessio) is in the following form: in the presence of some magistrate of the Roman people, such as a praetor, the surrenderee grasping the object says: I say this slave is my property by title Quiritary. Then the praetor interrogates the surrenderor whether he makes a counter-vindication, and upon his disclaimer or silence awards the thing to the vindicant. This proceeding is called a statute-process; it can even take place in a province before the president.
§ 25. Generally, however, and almost always the method of mancipation is preferred; for why should a result that can be accomplished in private with the assistance of our friends be prosecuted with greater trouble before the praetor or president of the province?
§ 26. If neither mancipation nor surrender before the magistrate is employed in the conveyance of a mancipable thing . . . .
§§ 14 a-23. Mancipable things—things taken by the hand and so alienable—were at first, probably, the more important accessories of a farm, that is, slaves and beasts of burden—oxen, horses, mules and asses (1 § 120), land itself in Italy and rural servitudes attaching to such land being subsequently made mancipable.
These, the objects of principal value to an agricultural community, became alienable by means of the formal proceeding by bronze and balance, called mancipation, which Gaius says (1, 119) is an imaginary sale.
In its origin, however, mancipation appears to have been not an imaginary, but a genuine sale for valuable consideration. The introduction of coined money by making the weighing of the bronze in the scales a formality first gave the proceeding an appearance of unreality, but in order to maintain its original character, the Twelve Tables, which were passed at the time when this important monetary change took place, expressly declared that no property should pass by mancipation, unless the price was actually paid to the mancipating party or security given him for it (cf. Inst. 2, 1, 41 Venditae vero et traditae non aliter emptori adquiruntur, quam si is venditori pretium solverit vel alio modo ei satisfecerit, veluti expromissore aut pignore dato: quod cavetur etiam lege duodecim tabularum)—where traditae is an evident Tribonianism for mancipatae. But this law was afterwards evaded by juristic ingenuity, the practice of paying only a nominal sum—a single sesterce—being held to be a sufficient compliance with it. This made it possible to use mancipation as a mere conveyancing form. Even in the case of genuine sales, it was found advantageous only thus to pay a nominal sum in the mancipation itself and to make the payment of the purchase money something entirely apart, for by this means the mancipating party in fact escaped the liability imposed on him by the Twelve Tables of paying, as warrantor of the title (auctor), double the price to the other party to the transaction in case of the latter being evicted (cf. Cic. pro Mur. 2, 3, in Caec. 19, 54), and it had the further advantage that the purchaser was enabled to acquire ownership by the mancipation before he had paid the actual purchase money (cf. Muirhead, Roman Law, § 30; Sohm, pp. 51, 61). How, by means of the nuncupation and by collateral fiduciary agreements, mancipation was adapted to effect various legal purposes, may be seen in other parts of the text and commentary.
The form of mancipation (1, 119) shows its archaic origin. If, as has been thought by many modern writers, the witnesses to it originally represented the five classes of the Roman people, mancipation, at least in its ultimate form, cannot have been earlier than the Servian constitution, by which this division of the people was made. The advantage of requiring the presence of a number of citizens to bear testimony to important transfers of property in an age when writing was not in common use is apparent.
§§ 24-26. In jure cessio—the other mode of transfer peculiar to Jus Civile, and so likewise confined to Roman citizens, is an adaptation of the legis actio per vindicationem to conveyancing purposes, depending for its operation on the collusive admission by the defendant of the supposed plaintiff’s claim (confessus pro judicato est). This fictitious process, which is not so primitive in character as mancipation, though it was also recognized by the law of the Twelve Tables, must have been introduced to circumvent the law in order to effect objects unattainable by direct means, such as the manumission of slaves. Though Quiritary ownership could be thus conveyed, it was, for the reason given in § 25, rarely employed for this purpose. But for creating or transferring some kinds of rights surrender before a magistrate was essential, §§ 30, 34.
In jure cessio or surrender before a magistrate cannot fail to recall to an English lawyer two similar modes of alienation that recently existed in English jurisprudence, alienation by Fine and alienation by Recovery, both of which, like in jure cessio, were based on a fictitious action; in both of which, that is to say, although the parties did not really stand in the relation of adverse litigants, the alienee was supposed to recover an estate by process of law. By a Fine, an action commenced against the alienor and at once terminated by his acknowledging the right of the alienee, a tenant in tail could aliene the fee simple, so far at least as to bar his own issue. By a Recovery, a tenant in tail could convey an absolute estate in fee. This was an action supposed to be, not like a Fine immediately compromised, but carried on through every regular stage to the conclusion; whereby the alienee recovered judgement against the alienor, who in his turn recovered judgement against an imaginary warrantor whom he vouched to warranty (cf. laudat auctorem, 3 § 141, comm.).
Res nec mancipi, that is all objects of individual ownership, other than res mancipi, were the only things allowed to pass in complete ownership (pleno jure) simply by tradition, § 19.
This informal mode of alienation did not, like mancipatio, in jure cessio, and usucapio, belong to Jus Civile, but to Jus Gentium, § 65; and was of later introduction than these.
The tradition or informal delivery of some res nec mancipi must, however, have been common from the earliest times, though such tradition would have been regarded at first merely as a delivery of possession, to be protected by the law of theft, not as a title of ownership, to be asserted by vindicatio. At a later period, however, in order to facilitate commerce, tradition became by the influence of jus gentium a mode of acquiring ownership in things which did not belong to the privileged class of res mancipi. By tradition, which is a transfer of possession, ownership may be also transferred, if the transferor is himself owner; otherwise conformably to the principle ‘Nemo plus juris transferre potest, quam ipse habet’—possession only passes, bona fide possession, if the transferee knows nothing of his defective title, malâ fide, if he is aware of it. If we consider Surrender before a Magistrate, Mancipation, Tradition, we shall see that they are only three forms of one identical title, Alienation. The substance or essence of the title, the intention on the one side to transfer property, on the other to accept it, is the same in all three; it is only the adventitious, or accidental, or evidentiary portion of the title in which they differ.
Although delivery of possession, like the solemnities of mancipation and surrender, is, as compared with the will or intention of the parties, only an evidentiary and declaratory part of the title; yet both parcels, delivery of possession, as well as agreement, are indispensable in the transfer of ownership. ‘Traditionibus et usucapionibus dominia rerum, non nudis pactis transferuntur,’ Cod. 2, 3, 20. ‘Tradition and usucapion, not bare agreement, operate as a transfer of ownership.’ Tradition, which is only applicable to corporeal things, is usually effected by some physical act of appropriation, but it may take place without any such actual delivery being made at the time. This occurs when a vendor agrees to hold the property he sells on account of, or as agent of, the purchaser (constitutum possessorium), or when a person already holding a thing on account of the vendor, e. g. as a deposit, or loan, agrees to purchase it (traditio brevi manu). (Inst. 2, 1, 44.)
We have spoken of tradition as a title whereby ownership was acquired. Tradition, however, was only an element, usually the final element, of the complex mode of acquisition, to which it gives its name. To be capable of passing property, delivery must be accompanied by another element, usually an antecedent element, some contract of sale or other legal ground, which is evidence of an intention to aliene. ‘Nunquam nuda traditio transfert dominium, sed ita si venditio vel aliqua justa causa praecesserit, propter quam traditio sequeretur,’ Dig. 41, 1, 31 pr. It is clear that bare delivery, or transfer of physical control, without any further element of Title, cannot pass Dominium, for in Loan for Use (commodatum) such transfer merely passes what may be called Detention without Possession; in Pledge (pignus) it passes what may be called derivative Possession; in Deposit it usually passes Detention alone, but sometimes Possession also, though in this case also it is derivative Possession, not Possession of the thing as one’s own. (4 §§ 138-170, comm.) The cases in which Ownership (Dominium) is passed by Tradition may be reduced to three classes, traditio donandi animo, traditio credendi animo, and traditio solvendi animo. In the first, it simply confers ownership on the donee; in the second, it confers ownership on the transferee, and subjects him to an obligation; in the third, it confers ownership on the transferee, and discharges the transferor of an obligation. In the two latter cases, i. e. tradition by way of loan, as of money (mutui datio), and tradition by way of payment (solutio), the disposition or justa causa accompanying tradition contains much that is unessential to the transfer of dominium or ownership, the only absolutely essential element being the intention of the parties to convey and take dominium. In Donation the justa causa traditionis consists solely of this essential element. The justa causa, then, which must accompany delivery, must involve the animus or voluntas transferendi dominii, and this, apparently, is given as the whole of the matter in a passage of Gaius quoted in Digest: ‘Hae quoque res, quae traditione nostrae fiunt, jure gentium nobis adquiruntur; nihil enim tam conveniens est naturali aequitati quam voluntatem domini volentis rem suam in alium transferre ratam haberi,’ Dig. 41, 1, 9, 3. Tradition is a mode of acquisition, ‘in accordance with Jus Gentium, for it is a plain dictate of natural justice, that the will of an owner to transfer his ownership to another should be allowed to take effect.’
In one case, as we have seen, the operation even of contract and delivery combined was limited by the Twelve Tables, namely, in Sale. Hence it came about that tradition did not operate a transmutation of property without a further condition—payment of the purchase money, unless the sale is intended to be a sale on credit, or satisfaction is made to the vendor in some way. Inst. 2, 1, 41. Delivery sometimes precedes the intention to transfer, for instance, in a conditional sale; in which case the transfer of property may be suspended until the condition is fulfilled. The intended transferee may be an incerta persona, for instance, when money is scattered among a mob by a praetor or consul (missilium jactus). Inst. 2, 1, 46.
Tradition in Roman law was never fictitious; it was always an actual delivery of a power of physical or corporeal control, so the delivery of the keys of a house is not something symbolical or fictitious, but a real transfer of a power of exercising dominion. The restriction of tradition, as a mode of acquiring ownership, to res nec mancipi had previously to the time of Gaius lost much of its importance, the Praetor protecting one to whom a res mancipi, such as land, had been delivered, as if Quiritarian ownership of it had been obtained by usucapion, § 41. In Justinian’s time Tradition had entirely superseded the civil titles of surrender before the magistrate and mancipation: the ancient distinction between res mancipi and res nec mancipi being no longer in existence.
§ 21. This section contains the clearest statement which we possess of the technical distinction between the two classes of provinces instituted by Augustus. Those which were not under the direct control of the Princeps were technically under the control of the Senate and People (compare Dio Cassius, liii. 12); but, as the People was mainly represented by the Senate, they are often spoken of as Senatorial Provinces. The provinces of Caesar were far more numerous; about the time of Gaius they numbered thirty-one—twenty-one being governed by Legati pro praetore, nine by Procurators, and Egypt by its Praefect—while the Public Provinces under Proconsuls numbered but eleven. See Marquardt, Staatsverwaltung, i. p. 494. The attempt to keep these departments distinct was a failure; and the control of the Public Provinces by the Princeps was now very considerable, especially in matters of jurisdiction. But the technical difference between the two kinds of provinces was still preserved in the reign of Marcus Aurelius. Thus we find that Emperor causing provinces to be transferred from the one to the other category in obedience to military considerations, and asking the Senate to vote money to him from the Aerarium, the treasury which contained the dues from the Public Provinces (Vita Marci, 22, Dio Cassius, lxxi. 33).
During the Republic the taxes paid by provincials had been called stipendium—a word which points to the view originally taken that these revenues were meant to meet military expenses; for stipendium means pay for the army. During the Principate the word tributum came also to be used for imperial taxes; but this passage of Gaius shows that stipendium was still employed for the dues paid by the Public Provinces. The distinction between stipendiary and tributary provinces is perhaps based on a difference in the mode of collecting, not of levying, the taxes. It seems that in the Public Provinces the taxes were still collected by the local governments themselves and paid to the Quaestors, whereas in Caesar’s Provinces the Procurators came into direct contact with the tax-payer. The mode of collection was in the second case direct, in the first indirect. It is also possible that the ownership of the soil in Caesar’s Provinces was regarded as vested in the Princeps, that of the soil in the Public Provinces as vested in the Roman state (see Mommsen, Staatsrecht, ii. p. 1088), and this distinction may be implied in the two classes of provincialia praedia mentioned by Gaius.
The mode of taxation was uniform for the whole Empire, and the assessments were made at intervals by the Emperor’s officials. The taxes were either imports on the land (tributum soli) or on the person (tributum capitis). The land-tax was in most provinces paid either in money or grain, more usually in the former, although in certain minor districts it was delivered in the form of other produce. The personal tax might be one on professions, income, or movable property. Occasionally it was a simple poll-tax, this latter burden being probably imposed on those provincials whose property fell below a certain rating.
§ 24. The legati Caesaris or Presidents of imperial provinces had originally on jurisdiction to preside over legis actio, but this was afterwards conferred upon them, Tac. Ann. 12, 60.
§ 26. Gaius probably explained in this place the effect of tradition of a res mancipi, § 41, and then went on to treat of the jus commercii. Ulp. 19, 4, 5 Mancipatio locum habet inter cives Romanos et Latinos coloniarios Latinosque Junianos eosque peregrinos quibus commercium datum est. Commercium est emendi vendendique invicem jus.
RERVM INCORPORALIVM ADQVISITIONES CIVILES.
§ 28. 〈Res〉 incorporales traditionem non recipere manifestum est.
§ 29. Sed iura praediorum urbanorum in iure cedi 〈tantum〉 possunt; rusticorum uero etiam mancipari possunt.
§ 30. Vsusfructus in iure cessionem tantum recipit. nam dominus proprietatis alii usumfructum in iure cedere potest, ut ille usumfructum habeat et ipse nudam proprietatem retineat. ipse ususfructuarius in iure cedendo domino proprietatis usumfructum efficit, ut a se discedat et conuertatur in proprietatem; alii uero in iure cedendo nihilo minus ius suum retinet; creditur enim ea cessione nihil agi.
§ 31. Sed haec scilicet in Italicis praediis ita sunt, quia et ipsa praedia mancipationem et in iure cessionem recipiunt. alioquin in prouincialibus praediis siue quis usumfructum siue ius eundi agendi aquamue ducendi uel altius tollendi aedes aut non tollendi, ne luminibus uicini officiatur, ceteraque similia iura constituere uelit, pactionibus et stipulationibus id efficere potest, quia ne ipsa quidem praedia mancipationem aut 〈in〉 iure cessionem recipiunt.
§ 32. Sed cum ususfructus et hominum et ceterorum animalium constitui possit, intellegere debemus horum usumfructum etiam in prouinciis per in iure cessionem constitui posse.
§ 33. Quod autem diximus usumfructum in iure cessionem tantum recipere, non est temere dictum, quamuis etiam per mancipationem constitui possit eo quod in mancipanda proprietate detrahi potest; non enim ipse ususfructus mancipatur, sed cum in mancipanda proprietate deducatur, eo fit ut apud alium ususfructus, apud alium proprietas sit.
§ 34. Hereditas quoque in iure cessionem tantum recipit.
§ 35. Nam si is, ad quem ab intestato legitimo iure pertinet hereditas, in iure eam alii ante aditionem cedat, id est antequam heres extiterit, proinde fit heres is cui in iure cesserit, ac si ipse per legem ad hereditatem uocatus esset; post obligationem uero si cesserit, nihilo minus ipse heres permanet et ob id creditoribus tenebitur, debita, uero pereunt eoque modo debitores hereditarii lucrum faciunt; corpora uero eius hereditatis proinde transeunt ad eum cui cessa est hereditas, ac si ei singula in iure cessa fuissent.
§ 36. Testamento autem scriptus heres ante aditam quidem hereditatem in iure cedendo eam alii nihil agit; postea uero quam adierit si cedat, ea accidunt, quae proxime diximus de eo ad quem ab intestato legitimo iure pertinet hereditas, si post obligationem 〈in〉 iure cedat.
§ 37. Idem et de necessariis heredibus diuersae scholae auctores existimant, quod nihil uidetur interesse utrum 〈aliquis〉 adeundo hereditatem fiat heres, an inuitus existat; quod quale sit, suo loco apparebit. sed nostri praeceptores putant nihil agere necessarium heredem, cum in iure cedat hereditatem.
§ 38. Obligationes quoquo modo contractae nihil eorum recipiunt. nam quod mihi ab aliquo debetur, id si uelim tibi deberi, nullo eorum modo quibus res corporales ad alium transferuntur id efficere possum, sed opus est, ut iubente me tu ab eo stipuleris; quae res efficit, ut a me liberetur et incipiat tibi teneri; quae dicitur nouatio obligationis.
§ 39. Sine hac uero nouatione non poteris tuo nomine agere, sed debes ex persona mea quasi cognitor aut procurator meus experiri.
RERVM INCORPORALIVM ADQVISITIONES CIVILES.
§ 28. Incorporeal things are obviously incapable of transfer by delivery of possession (traditio).
§ 29. But while before a magistrate urban servitudes can only be created by surrender before a magistrate; rural servitudes may either be acquired by this method or by mancipation.
§ 30. Usufruct can only be created by surrender. A usufruct surrendered by the owner of the property passes to the surrenderee, leaving the bare property in the owner. A usufruct surrendered by the usufructuary to the owner of the property passes to the latter and is merged in the ownership. Surrendered to a stranger it continues in the usufructuary, for the surrender is deemed inoperative.
§ 31. These modes of creating usufruct are confined to estates in Italian soil, for only these estates can be conveyed by mancipation or judicial surrender. On provincial soil, usufructs and rights of way on foot, horseback, and for carriages, watercourses, rights of raising buildings or not raising, not obstructing lights, and the like, must be created by pact and stipulation; for the lands themselves, which are subject to these servitudes, are incapable of conveyance by mancipation or surrender before a magistrate.
§ 32. In slaves and other animals usufruct can be created even on provincial soil by surrender before a magistrate.
§ 33. My recent statement that usufruct was only constituted by surrender before a magistrate was not inaccurate, although it may in this sense be created by mancipation that we may mancipate the property and reserve the usufruct; for the usufruct itself is not mancipated, though in mancipating the property the usufruct is reserved so that the usufruct is vested in one person and the property or ownership in another.
§ 34. Inheritances also are only alienable by surrender before a magistrate.
§ 35. If the person entitled by the statutory rules of the civil law of intestacy surrender the inheritance before acceptance, that is to say, before his heirship is consummated, the surrenderee becomes heir just as if he was entitled by agnation; but if the agnate surrenders after acceptance, in spite of the surrender he continues heir and answerable to the creditors, his rights of action being extinguished and the debtors to the estate thus discharged of liability without payment, while the ownership in the corporeal objects of the inheritance passes to the surrenderee just as if it had been surrendered in separate lots.
§ 36. The surrender of an inheritance by a person instituted heir by will before acceptance is inoperative; but after acceptance it has the operation just ascribed to the agnate’s surrender of an intestate succession after acceptance.
§ 37. And so has a surrender by a necessary successor according to the authorities of the other school, who maintain that it seems immaterial whether a man becomes heir by acceptance or whether he becomes heir ipso jure, irrespective of his intention (a distinction that will be explained in its proper place): according to my school a necessary heir’s surrender of the inheritance is inoperative. [3 § 85.]
§ 38. Obligations, in whatever way contracted, are incapable of transfer by either method. For if I wish to transfer to you my claim against a third person, none of the modes whereby corporeal things are transferred is effective: but it is necessary that at my order the debtor should bind himself to you by stipulation: whereupon my debtor is discharged of his debt to me and becomes liable to you; which transformation is called novation of an obligation.
§ 39. In default of such novation he cannot sue in his own name, but must sue in my name as my cognitor or procurator.
§ 28. So incorporeal hereditaments in English law were said to lie in grant, not in feoffment, i. e. to be only conveyable by deed, or writing under seal; whereas corporeal hereditaments were conveyable by feoffment, i. e. by livery of seisin or delivery of possession.
§ 30. Inalienability was no peculiar characteristic of Usufruct and other personal servitudes. Alienation of rights, or singular succession as opposed to inheritance or universal succession, was the exception, not the rule. Dominion over res singulae was alienable, but almost all other rights were intransferable. If we except the case of hereditas legitima delata, § 35, hereditas, as we shall see, was inalienable: and what is said of Urban and Rural praedial servitudes, §§ 29, 30, refers to their creation, not to their alienation. In the law of Persons, Patria potestas, 1 § 134, and Tutela in some cases, 1 § 168, could be transferred but only by surrender before a magistrate (in jure cessio), i. e. a process which feigned that there was no transfer. Manus and mancipium could be extinguished but not transferred [Ihering, § 32], except that, apparently, mancipium could be retransferred to the natural parent or mancipator, 1 § 132.
§ 31. It appears that convention (pactio et stipulatio) alone unaccompanied by tradition or quasi-tradition was capable of creating a right analogous to a Roman servitude in provincial land, to which in jure cessio and mancipatio were inapplicable, in opposition to the principle of Roman law, as stated by some modern writers, that mere agreement can only create at the utmost an obligation (jus in personam), and in order to create a jus in rem must be accompanied by delivery of possession. But in our authorities this principle is confined to res corporales, which alone admit of real tradition. Exceptional instances in which agreement without any further accompaniment creates a jus in rem, that is, transfers either dominion or jus in re aliena, are hypotheca (see 3 § 91, comm.) and societas omnium bonorum (see 3 § 148). Vangerow, however, holds, § 350, that pactio and stipulatio could not create a genuine servitus, enforceable against the servient person or tenement, but only an Obligatio, enforceable against the contracting party and his heirs: that in the time of Gaius this was all that could be accomplished; but that afterwards, when quasitraditio of res incorporalis was recognized as practicable, genuine Servitudes could be thus constituted. The distinction between solum Italicum and provinciale was subsequently abolished, and in jure cessio and mancipatio disappeared. In the Institutes of Justinian we are told that both praedial servitudes (Inst. 2, 3, 4) and the personal servitude of usufruct (Inst. 2, 4, 2) are created by pacts and stipulations, nothing being there said of quasi-traditio, as a condition of acquiring servitudes. The combination of pact and stipulation for the purpose has been explained as an amalgamation of foreign and Roman law, a mere pact being recognized by the former, but unless embodied in a stipulation unenforceable by the latter (cf. Sohm, § 69; Dernburg, Pandekten, § 251, n. 16).
§ 32. In accordance with the principle that movables are personal, a Roman could convey movable property by conveyances confined to citizens, wherever such property was situated.
The servitus altius tollendi, or the right of increasing the height of an edifice, is at first sight very enigmatical. My right of increasing the height of my building, and thus obstructing the lights of my neighbour, would seem to be part and parcel of my unlimited rights of dominion: and, if a dispute arose, one would think that the burden of proof would be on my neighbour, who would have to prove a special limitation of my rights as owner of a praedium serviens and a special right residing in himself as owner of a praedium dominans: that is to say, that instead of my having to prove a servitude or jus altius tollendi, my neighbour would have to prove a servitude or jus altius non tellendi. Cum eo, qui tollendo obscurat vicini aedes, quibus non serviat, nulla competit actio, Dig. 8, 2, 9. ‘A man who by building obscures his neighbour’s lights, unless subject to a servitude, is not actionable.’ Altius aedificia tollere, si domus servitutem non debeat, dominus ejus minime prohibetur, Cod. 3, 34, 8. ‘A man cannot be prevented from raising the height of his house unless it is subject to a servitude.’ The same rule is laid down in English law. The following is perhaps the most probable solution of the problem:
The extinction of Rural and Urban servitudes was governed by different rules. The extinction of a Rural servitude was more easily accomplished than that of an Urban servitude: it was effected by simple non-user (non utendo) on the part of the dominant property for a period, originally, of two years, afterwards of ten. The extinction of an Urban servitude demanded, besides the negative omission of use on the part of the dominant, a positive possession of freedom (usucapio libertatis) on the part of the servient owner. Gaius (ad Edictum Provinciale, Dig. 8, 2, 6) thus explains the difference: in a servitus ne amplius tollantur aedes, or ne luminibus aedium officiatur, if the windows of the dominant house are closed with masonry there is a non-usus of the servitude on the part of the dominant owner; if at the same time the height of the servient house is raised there is possession of freedom on the part of the servient owner. Or in a servitus tigni immissi, if the dominant owner removes the beam from his neighbour’s wall there is on his part non-usus; if the servient owner builds up the orifice in which the beam was inserted, there is on his part usucapio libertatis. Originally Servitudes, like Dominium, could be acquired by Usucapion; and as Usucapion was applied to the extinction of Urban Servitudes, it was regarded by the jurists as a mode of acquiring or of creating an antagonistic servitude. On the extinction of a Rural servitude, the servient property simply recovered its original dimensions: an Urban servitude was a permanent diminution of the servient property, and on its extinction the servient property, instead of dilating to its original size, recovered what it had lost in the shape of the annexation of a contrary servitude. When at an unknown date the Usucapion of servitudes was abolished by a lex Scribonia, an exception was made in favour of these Contrary servitudes, which in fact were not genuine servitudes, but merely the expression of the greater difficulty of extinguishing an Urban servitude. Libertatem servitutium usucapi posse verius est, quia eam usucapionem sustulit lex Scribonia, quae servitutem constituebat, non etiam eam, quae libertatem praestat sublata servitute, Dig. 41, 3, 4, 28. ‘The better view is that extinction of servitude by usucapion is admissible, for the usucapion abolished by the lex Scribonia was usucapion whereby a servitude is constituted, not that which liberates by extinction of servitude.’ Thus he who laboured under a disability of building (jus altius non tollendi) was regarded on its extinction as having acquired the opposite easement, jus altius tollendi; he who was relieved of the servitus ne luminibus officiatur was regarded as acquiring a jus officiendi luminibus vicini; he who was relieved from the servitus stillicidii avertendi in tectum vel aream vicini was deemed to acquiie a jus stillicidii non avertendi, Gaius ad Edictum Provinciale. Dig. 8, 2, 2. It does not appear that the ordinary requisites of Usucapio, titulus and bona fides (§ 61, comm.), were required in this usucapio libertatis.
In usucapio libertatis, a right being acquired, the ten years are complete on the commencement of the last day: in non-usus, a right being lost, the ten years are not complete till the last day is terminated.
The three servitudes, ne prospectui officiatur, ne luminibus officiatur. ne altius tollatur, are similar in character, but differ in their degree of extension. The servitus ne luminibus officiatur is not so extensive as the servitus ne prospectui officiatur, for that may amount to an obstruction of prospect which does not cause a diminution of light, Dig. 8, 2, 15: but is wider than servitus altius non tollendi, because light may be intercepted by other causes than buildings, by plantation, for instance, though building is the principal means of interception.
Servitus luminum has been already noticed, §§ 1-14, comm., as apparently identical with jus luminis immittendi, i. e. the right of having a window in a neighbour’s wall. Luminum servitute constituta id adquisitum videtur ut vicinus lumina nostra excipiat. Dig. 8, 2, 4. ‘The servitude of Lights entitles the owner of the dominant house to have a window in the wall of his servient neighbour.’
It appears from the above explanation that the servitus luminum and the servitus ne luminibus officiatur belong to different categories, for the servitus luminum, like the jus officiendi luminibus, belongs to the category of jus habendi; while the servitus ne luminibus officiatur belongs to the category of jus prohibendi.
§ 34. Cf. 3 §§ 85-87. The statement that an inheritance is not mancipable may seem inconsistent with what we are afterwards told of the testament by bronze and balance, § 102. There is, however, no real inconsistency. The subject mancipated in the will by bronze and balance, though a universitas, was not an inheritance—there was no inheritance to mancipate, for nemo est heres viventis—but the collective rights—familia, patrimonium—of the testator.
§ 38. The mode of transferring obligations may be more properly considered hereafter, when we examine the titles by which Jus in personam originates or terminates, 3 §§ 155-162, comm. Gaius glanced at the titles to Hereditas and Obligatio because he was treating of Res incorporales under which they are included; but he should have abstained from discussing Obligatio because he is now dealing with Jus in rem, and he should have abstained from discussing Hereditas because he is now dealing with Res singulae.
§ 40. Sequitur ut admoneamus apud peregrinos quidem unum esse dominium; nam aut dominus quisque est, aut dominus non intellegitur. quo iure etiam populus Romanus olim utebatur: aut enim ex iure Quiritium unusquisque dominus erat, aut non intellegebatur dominus. sed postea diuisionem accepit dominium, ut alius possit esse ex iure Quiritium dominus, alius in bonis habere.
§ 41. Nam si tibi rem mancipi neque mancipauero neque in iure cessero, sed tantum tradidero, in bonis quidem tuis ea res efficitur, ex iure Quiritium uero mea permanebit, donec tu eam possidendo usucapias; semel enim inpleta usucapione proinde pleno iure incipit, id est et in bonis et ex iure Quiritium tua res esse, ac si ea mancipata uel in iure cessa 〈esset.
§ 42.Vsucapio autem〉 mobilium quidem rerum anno conpletur, fundi uero et aedium biennio; et ita lege xii tabularum cautum est.
Inst. 2, 6 pr.
§ 43. Ceterum etiam earum rerum usucapio nobis conpetit, quae non a domino nobis traditae fuerint, siue mancipi sint eae res siue nec mancipi, si modo eas bona fide acceperiinus, cum crederemus eum qui traderet dominum esse.
§ 44. Quod ideo receptum uidetur, ne rerum dominia diutius in incerto essent, cum sufficeret domino ad inquirendam rem suam anni aut biennii spatium, quod tempus ad usucapionem possessori tributum est.
Inst. l. e.
§ 45. Sed aliquando etiamsi maxime quis bona fide alienam rem possideat. non tamen illi usucapio procedit, uelut si quis rem furtiuam aut ui possessam possideat; nam furtiuam lex xii tabularum usucapi prohibet, ui possessam lex Iulia et Plautia.
Inst. 2, 6, 1.
§ 46. Item prouincialia praedia usucapionem non recipiunt.
§ 47. 〈Item olim〉 mulieris, quae in agnatorum tutela erat, res mancipi usucapi non poterant, praeterquam si ab ipsa tutore 〈auctore〉 traditae essent; idque ita legexii tabularum cautum erat.
§ 48. Item liberos homines et res sacras et religiosas usucapi non posse manifestum est.
§ 49. Quod ergo uulgo dicitur furtiuarum rerum et ui possessarum usucapionem per legemxii tabularum prohibitam esse, non eo pertinet, ut ne ipse fur quiue per uim possidet usucapere possit (nam huic alia ratione usucapio non conpetit, quia scilicet mala fide possidet); sed nec ullus alius, quamquam ab eo bona fide emerit, usucapiendi ius habeat.
Inst. 2, 6, 3.
§ 50. Vnde in rebus mobilibus non facile procedit, ut bonae fidei possessori usucapio conpetat, quia qui alienam rem uendidit et tradidit furtum committit; idemque accidit etiam si ex alia causa tradatur. sed tamen hoc aliquando aliter se habet; nam si heres rem defuncto commodatam aut locatam uel apud eum depositam existimans eam esse hereditariam uendiderit aut donauerit, furtum non committit; item si is, ad quem ancillae ususfructus pertinet, partum etiam suum esse credens uendiderit aut donauerit, furtum non committit; furtum enim sine adfectu furandi non committitur. aliis quoque modis accidere potest, ut quis sine uitio furti rem alienam ad aliquem transferat et efficiat, ut a possessore usucapiatur.
Inst. 2, 6, 3 and 4.
§ 51. Fundi quoque alieni potest aliquis sine ui possessionem nancisci, quae uel ex neglegentia domini uacet, uel quia dominus sine successore decesserit uel longo tempore afuerit; quam si ad alium bona fide accipientem transtulerit, poterit usucapere possessor; et quamuis ipse, qui uacantem possessionem nactus est, intellegat alienum esse fundum, tamen nihil hoc bonae fidei possessori ad usucapionem nocet, 〈cum〉 inprobata sit eorum sententia, qui putauerint furtiuum fundum fieri posse.
Inst. 2, 6, 7.
§ 52. Rursus ex contrario accidit ut qui sciat alienam rem se possidere usucapiat, ueluti si rem hereditariam, cuius possessionem heres nondum nactus est, aliquis possederit; nam ei concessum 〈est usu〉capere, si modo ea res est quae recipit usucapionem; quae species possessionis et usucapionis pro herede uocatur.
§ 53. Et in tantum haec usucapio concessa, est, ut et res quae solo continentur anno usucapiantur.
§ 54. Quare autem hoc casu etiam soli rerum annua constituta sit usucapio, illa ratio est, quod olim rerum hereditariarum possessione uelut ipsae hereditates usucapi credebantur, scilicet anno. lex enim xii tabularum soli quidem res biennio usucapi iussit, ceteras uero anno. ergo hereditas in ceteris rebus uidebatur esse, quia soli non est quia neque corporalis est. 〈et〉 quamuis postea creditum sit ipsas hereditates usucapi non posse, tamen in omnibus rebus hereditariis, etiam quae solo tenentur, annua usucapio remansit.
§ 55. Quare autem omnino tam inproba possessio et usucapio concessa sit, illa ratio est, quod uoluerunt ueteres maturius hereditates adiri, ut essent qui sacra facerent, quorum illis temporibus summa obseruatio fuit, et ut creditores haberent a quo suum consequerentur.
§ 56. Haec autem species possessionis et usucapionis etiam lucratiua uocatur; nam sciens quisque rem alienam lucri facit.
§ 57. Sed hoc tempore iam non est lucratiua. nam ex auctoritate Hadriani senatus-consultum factum est ut tales usucapiones reuocarentur. et ideo potest heres ab eo qui rem usucepit hereditatem petendo proinde eam rem consequi, atque si usucapta non esset.
§ 58. Necessario tamen herede extante nihil ipso iure pro herede usucapi potest.
§ 59. Adhuc etiam ex aliis causis sciens quisque rem alienam usucapit. nam qui rem alicui fiduciae causa mancipio dederit uel in iure cesserit, si eandem ipse possederit, potest usucapere, anno scilicet, 〈etiam〉 soli si sit. quae species usucapionis dicitur usureceptio, quia id quod aliquando habuimus recipimus per usucapionem.
§ 60. Sed fiducia contrahitur aut cum creditore pignoris iure, aut cum amico, quo tutius nostrae res apud eum sint; et siquidem cum amico contracta sit fiducia, sane omni modo conpetit ususreceptio; si uero cum creditore, soluta quidem pecunia omni modo conpetit, nondum uero soluta ita demum conpetit, si neque conduxerit eam rem a creditore debitor, neque precario rogauerit, ut eam rem possidere liceret; quo casu lucratiua ususcapio conpetit.
§ 61. Item si rem obligatam sibi populus uendiderit eamque dominus possederit, concessa est ususreceptio; sed hoc casu praedium biennio usurecipitur. et hoc est quod uulgo dicitur ex praediatura possessionem usurecipi; nam qui mercatur a populo praediator appellatur.
§ 40. We must next observe that for aliens there is only one ownership and only one owner at the same time of a thing, and so it was in ancient times with the people of Rome, for a man had either quiritary dominion or none at all. They afterwards decomposed dominion so that one person might have quiritary ownership of an object of which another person had bonitary ownership.
§ 41. For if a mancipable thing is neither mancipated nor surrendered before a magistrate but simply delivered to a person, the bonitary ownership passes to the alienee, but the quiritary ownership remains in the alienor until the alienee acquires it by usucapion; for as soon as usucapion is completed, plenary dominion, that is, the union of bonitary and quiritary ownership, vests in the alienee just as if he had acquired the thing by mancipation or surrender before a magistrate.
§ 42. Usucapion of movables requires a year’s possession for its completion, of land and houses, two years’ possession, a rule which dates from the law of the Twelve Tables.
§ 43. Quiritary ownership of a thing may also be acquired by usucapion, when possession of it has been transferred to one by a person who is not the owner of it, and this is the case in things either mancipable or not mancipable, if they are received in good faith by a person who believes the deliverer to be owner of them.
§ 44. The reason of the law appears to be the inexpediency of allowing ownership to be long unascertained, the previous owner having had ample time to look after his property in the year or two years which must elapse before usucapion is complete.
§ 45. Some things, however, notwithstanding the utmost good faith of the possessor, cannot be acquired by usucapion, things, for instance, which have been stolen or violently possessed, stolen things being declared incapable of usucapion by the law of the Twelve Tables, and things violently possessed by the lex Julia and Plautia.
§ 46. So, too, provincial land and houses are incapable of usucapion.
§ 47. Formerly, when a woman was under her agnate’s guardianship, her mancipable things were not subject to usucapion, unless she herself delivered possession of them with her guardian’s sanction, and this was an ordinance of the Twelve Tables.
§ 48. Free men, also, and things sacred or religious, are obviously not susceptible of usucapion.
§ 49. The common statement that in things stolen or violently possessed, usucapion is barred by the law of the Twelve Tables, means, not that the thief or violent dispossessor is incapable of acquiring by usucapion, for he is barred by another cause, his want of good faith; but that even a person who purchases in good faith from him is incapable of acquiring by usucapion.
§ 50. Accordingly, in things movable a possessor in good faith cannot easily acquire ownership by usucapion, because he that sells and delivers possession of a thing belonging to another is guilty of theft. However, sometimes this is otherwise, for an heir who believes a thing lent or let to, or deposited with, the deceased to be a portion of the inheritance, and sells it or gives it away, is not guilty of theft: again, the usufructuary of a female slave who believes her offspring to be his property and sells it or gives it away, is not guilty of theft; for there can be no theft without unlawful intention: and similarly other circumstances may prevent the taint of theft from attaching to the delivery of a thing belonging to another, and enable the receiver to acquire by usucapion.
§ 51. Possession of land belonging to another may be acquired without violence, when vacant by neglect of the owner, or by his death without leaving a successor, or his long absence from the country, and an innocent person to whom the possession is transferred may acquire the property by usucapion; for though the original seizer of the vacant possession knew that the land belongs to another, yet his knowledge is no bar to the usucapion of the innocent alienee, as it is no longer held that theft can be committed of land.
§ 52. On the other hand, knowledge that one is acquiring possession of another person’s property (mala fides) does not always prevent usucapion, for any one may seize a portion of an inheritance of which the heir has not yet taken possession and acquire it by usucapion, provided it is susceptible of usucapion, and he is said to acquire by title of quasi heir.
§ 53. With such facility is this usucapion permitted that even land may be thus acquired in a year.
§ 54. The reason why even land in these circumstances demands only a year for usucapion is, that in ancient times the possession of property belonging to the inheritance was held to be a means of acquiring the inheritance itself, and that in a year: for while the law of the Twelve Tables fixed two years for the usucapion of land and one year for the usucapion of other things, an inheritance was held to fall under the category of ‘other things,’ as it is neither land nor corporeal: and though it was afterwards held that the inheritance itself was not acquirable by usucapion, yet the property belonging to the inheritance, including land, continued acquirable by a year’s possession.
§ 55. The motive for permitting at all so unscrupulous an acquisition was the wish of the ancient lawyers to accelerate the acceptance of inheritances, and thus provide persons to perform the sacred rites, to which in those days the highest importance was attached, and also to secure some one from whom creditors might obtain satisfaction of their claims.
§ 56. This mode of acquisition is sometimes called lucrative usucapion, for the possessor knowingly acquires the benefit of another’s property.
§ 57. In the present day, however, this kind of usucapion is not lucrative, for the Senate on the motion of Hadrian decreed that such usucapions are revocable, and accordingly where a person thus acquired a thing by usucapion, the heir can sue him by hereditatis petitio and recover the thing just as if the usucapion had never been completed.
§ 58. The existence of a necessary heir excludes ipso jure the operation of this kind of usucapion.
§ 59. There are other conditions under which a knowledge of another’s ownership is no bar to usucapion. After a fiduciary mancipation or surrender before a magistrate of his property, if the owner himself should become possessed of it, he recovers his ownership even over land in the period of a year, by what is called usureception or a recovery by possession, because a previous ownership is thereby recovered by usucapion.
§ 60. The fiduciary alienee is either a creditor holding the property as a pledge or a friend to whom the property is made over for safe custody; in the latter case the ownership is always capable of usureception: but in that of a creditor, though the owner can always thus re-acquire after payment of the debt, before payment of the debt he can only re-acquire provided he has not obtained the thing of his creditor on hire or got possession of it by request and licence; in this case he re-acquires by a lucrative usucapion.
§ 61. Again, the owner of a thing mortgaged to the people and sold for non-payment of the mortgage debt may re-acquire it by possession, but in this case, if it is land, usucapion is biennial: and this is the meaning of the saying, that after praediatura (a public sale) land is recoverable by (biennial) possession, a purchaser from the people being called praediator.
§§ 40, 41. Roman law originally only recognized one kind of ownership, called emphatically, quiritary ownership. Gradually, however, certain kinds of ownership were recognized which, though they failed to satisfy all the elements of the definition of quiritary dominion, were practically its equivalent, and received from the courts a similar protection. These kinds of ownership might fall short of quiritary ownership in three respects, (1) either in respect of the persons in whom they resided, (2) or of the objects to which they related, (3) or of the title by which they were acquired.
(1) To be capable of quiritary ownership a man must have one of the elements of Roman citizenship. Jus quiritium, right quiritary, sometimes, indeed, denotes all the elements of civitas Romana, Roman citizenship (1 §§ 28, 35, comm.). Beneficio principali Latinus civitatem Romanam accipit si ab imperatore jus quiritium impetraverit, Ulpian 3, 2. But the only element of citizenship required for quiritary ownership was commercium, and as we have seen that the Latinus possessed commercium without connubium, the Latinus was capable of quiritary dominion. The alien (peregrinus) on the contrary was incapable, except by special privilege: yet he might have ownership, which he acquired by titles of jus gentium, e g. tradition, occupation, accession, &c., and could maintain by a real action in the court of the praetor peregrinus or praeses provinciae.
(2) Provincial land was not capable of quiritary ownership Originally, indeed, private ownership appears to have been confined to things capable of being taken by the hand (mancipatae), that is to movables; and lands were only subject to public dominion or were the common property of the gens. Private ownership, however, first invaded a portion of the land, the heredium, or hereditary homestead of the gentilis, and finally became a general institution; and ager publicus, as opposed to ager privatus, almost ceased to exist on Italian soil. But in the provinces subsequently conquered, land continued to the end subject exclusively to public dominion; and thus one of the essential features of feudal tenure, the exclusive vesting of absolute or ultimate dominion over land in the sovereign as overlord, a principle commonly supposed to have been first introduced into Europe by the invading German hordes, had already existed, though in a different form, over by far the greater portion of the Roman world. It is true that the provinces were divided into private possessions and public domains; but private possessions as well as public domains were subject to a vectigal, and the tenants of the one and lessees of the other were equally devoid of absolute ownership. Rights over solum provinciale of a more or less limited kind were however acquirable, though not by titles of jus civile, and recoverable by real action, for which Gaius uses the terms possessio and ususfructus, § 7.
(3) Bonitary ownership was distinct both from an alien’s ownership and from rights over provincial land: it may be defined as the property of a Roman citizen in a subject capable of quiritary ownership, acquired in a way not known to the jus civile, but introduced by the praetor, and protected by his imperium or executive power. We have seen, for instance, that only non-mancipable things were capable of transfer by tradition; suppose, now, that a mancipable thing were conveyed by the owner to a vendee by tradition; the process would not make him quiritary owner; he would be no better than a bona fide possessor, until by the lapse of a year or of two years he acquired quiritary ownership by usucapion. The praetor, however, assisted the less cumbrous mode of alienation by treating the vendee as if he were owner; by giving him, if in possession, the exceptio rei venditae et traditae or plea of sale and delivery against the vendor who sought to recover as quiritary owner, and enabling the vendee, if dispossessed, to recover against the quiritary owner as well as against any third person by utilis vindicatio, called actio Publiciana, in which he would meet the plea of quiritary ownership (exceptio dominii) by the replicatio rei venditae et traditae or by the replicatio doli, a replication which could not be used by a mere bona fide possessor. Bonitary ownership, or ownership established by the praetor, when once invented, was employed by the praetor in other innovations, which he introduced, namely, as we shall see hereafter, in respect of res corporales of an insolvent debtor transferred to a purchaser by universal succession (bonorum venditio), and in respect of his testamentary and intestate succession (bonorum possessio): 3 § 80.
The barbarous term Bonitary (formed from the classical in bonis esse, in bonis habere) has the authority of Theophilus, who speaks of δεσπότης βονιτάριος, 1, 5, 4; he also calls bonitary ownership natural dominion (ϕυσικὴ δεσποτεία), as opposed to statutory, civil, or quiritary dominion (ἔννομος δεσποτεία).
Actio Publiciana was not only the remedy of the bonitary owner, but was also applicable on the alienation of anything whatever by a non-proprietor to an innocent alienee (bona fide possessor) in case the latter lost possession of it.
Usucapion, as in the case of bonitary ownership, might in the lapse of time have given the bona fide possessor plenary dominion, and, with it, vindication in the event of a loss of possession; but if he lost possession whilst usucapion was still incomplete, he would have had no real action (for, not being owner, he could not vindicate), if the praetor had not allowed him to sue by the actio Publiciana, which treated bona fide possession, that is, usucapion possession, or the inception of usucapion, as if it were plenary dominion in respect of every one, except the rightful owner. The latter, however, could defend himself in this action successfully against a mere bona fide possessor by the exceptio dominii, or bring a vindication against a bona fide possessor who retained possession, though, as we have seen, the quiritary owner was not allowed to avail himself of these means of protection against a person having a praetorian or bonitary title of ownership.
§§ 52-60. An heres was either voluntarius, empowered to accept or reject the inheritance, or necessarius, heir as matter of course, without any such power of election. A voluntary heir was either an agnate entitled to succeed an intestate, or any heir, not being a suus or necessarius heres of the testator, entitled under a will. A necessary heir was either a slave of the testator manumitted by his will, or a self-successor (suus heres), that is, a descendant under power of the testator or intestate, made independent by his death, § 152. In every case of voluntarius heres, so long as the heir had not entered on the inheritance, any stranger was permitted to seize parts of it and acquire property therein by usucapion. The only title (causa, titulus) required for this acquisition was the overture or delation of the inheritance to heres and vacancy of possession. This possession, which Gaius (§ 52) calls pro herede (see Dig. 5, 3, 9) is more properly called pro possessore. Cf. 4 § 144. ‘Possessor, as possessor, is the occupant, who, asked why he possesses, answers, “Because I possess,” and does not claim to be heir even mendaciously, and has no title of possession to allege.’ But according to early Roman law any person who was allowed by the voluntary heir to remain in possession of the inheritance for a year was considered lawfully entitled to it as heir, bona fides on the part of a possessor being at this time immaterial for the purpose of acquiring by usucapion (Muirhead, Roman Law, § 32). The senatusconsultum of Hadrian, referred to in the text, § 57, did not prevent the usucapion, but made it nugatory by allowing the heir to recover the hereditaments by real action (hereditatis petitio, or the interdict Quorum bonorum, 4 § 144), just as if the usucapion had never been completed.
Though the occupant of the vacant hereditament was called praedo, his possession, being encouraged by the lawgiver, was not unlawful until restitution was claimed, Savigny, § 264. This possession is probably the key to an enigmatical rule in Roman law: ipsum sibi causam possessionis mutare non posse, Dig. 41, 3, 33, 1; causam possessionis neminem sibi mutare posse, Dig. 41, 5, 2, 1. ‘No man can change at pleasure his title of possession.’ With the intention, it may be, of limiting the operation of possessio pro herede, an anomalous institution of questionable expediency, the rule declares that a person who commences his possession of a thing in the character of a vendee from a non-proprietor, or holds it as lessee, borrower, depositary, shall not be able, on the death of the true proprietor, to accelerate or initiate usucapion by merely professing that he ceases to hold in his former character and proceeds to hold as possessor pro herede or pro possessore.
Possessio pro herede was perhaps the germ of the intestate succession of next of kin or cognati, a succession, as we shall see, not originally recognized in Roman law: at least, the family or next of kin of an intestate would generally have the best chance of seizing any movables or immovables that he left; and perhaps it was this equitable result, no less than the object mentioned by Gaius, § 55, that, in the absence of a regular succession of cognati, led the public to look on possessio pro possessore as a rational and salutary institution.
The senatusconsultum mentioned in the text, § 57, is supposed by some commentators to be the same as one mentioned in the Digest (5, 3, 6), as having been passed at the instance of the Emperor Hadrian, when Q. Julius Balbus and P. Juventius Celsus were consuls, a. d. 129—hence called Sc. Juventianum. The institution of usucapio pro herede and pro possessore, or rather the senatusconsultum by which it was defeated, has left its traces in the formula, still to be found in the Digest, of the interdict Quorum bonorum, a remedy whereby a person who claimed either as civil heir (heres), or as praetorian heir (bonorum possessor), established his claim to succeed and recovered possession of the things belonging to the inheritance. See 4 § 144. To leave these traces in the wording of the interdict was according to Vangerow no oversight on the part of Justinian, as although in his legislation the last remnants of the institution of usucapio pro possessore, that is by a mala fide possessor, had been definitely abolished; yet usucapio pro herede, that is, by a bona fide possessor, or one who sincerely though mistakenly held himself to be heir, was still recognized by jurisprudence. § 320.
§ 60. For fiducia cum creditore see 1 § 114, comm., 3 §§ 90, 91, comm. Mancipation to a friend on trust for safe custody must have been the earliest legal form of deposit, as mancipation to a creditor on trust to reconvey was the earliest mode of pledge or mortgage. For precarium see 4 §§ 138-170, comm.
§ 61. The circumstances contemplated seem to be as follows: A proprietor is debtor to the Roman people or state, and his lands are mortgaged as security for the debt. On default of payment, the state exercises the power of sale: if the debtor is not turned out of possession by the purchaser (praediator) in two years he recovers his proprietorship by usureception. It seems that the sale by the people was merely the transfer of the mortgage; so that, if the debtor afterwards satisfied the purchaser, he recovered his land. Kuntze, Excursus des Röm. Rechts, 436.
Provincial lands were not subject to Usucapion; but a possessor for ten years during the presence of the owner in the same province (inter praesentes), or for twenty years in his absence (inter absentes), if he satisfied the conditions of usucapion, had, according to the provincial edict, the plea called longi temporis praescriptio against any action brought by the owner for recovery, and subsequently was himself allowed to recover the land, as if he were owner of it, so that longi temporis possessio became in later Roman law not simply a limitation of the right of action, but a positive title analogous to usucapion.
Usucapion required something beyond mere possession for a certain period; and something beyond what we hereafter call Interdict possession, 4 §§ 138-170. The conditions of possession which entitled a possessor to appeal for the protection of his possession to the praetor’s interdict were merely that he should have de facto control of the property, as if he were owner of it, all question of right or title being immaterial: nor was a mala fide any more than a bona fide possessor excluded from this protection, unless he had obtained possession from the other party to the interdict by means of violence (vi), or clandestinely (clam), or by his permission (precario). But to produce Usucapion (1) the person and thing to be acquired must be capable of quiritary ownership, and (2) it must not have been taken by any one’s theft or violence from the former owner, § 49: so that land not being subject to furtum was more easily acquired by usucapion than movable property, § 50; (3) the possession of the usucapient must be based on a justa causa or titulus, a ground of acquiring ownership, such as tradition or bequest; (4) and commenced with bona fides on his part, a condition which appears to have been annexed to the law of the Twelve Tables by the interpretation of the prudentes. Bona fides, in the case of titulus of occupancy, which is an original mode of acquisition, e.g. usucapio pro derelicto, is a mistaken belief that the thing is res nullius, has no proprietor. In the case of derivative acquisition it is the belief that the auctor, or person from whom the thing is derived, is either owner or, if not owner, has a power of disposition as agent, guardian, mortgagee, or otherwise. Vangerow, § 321. The Canon law requires during the whole period of such prescription the bona fides which the Civil law only requires at the inception.
Justinian remodelled the law of Usucapion, combining it with longi temporis possessio. Cf. Inst. 2, 6. For movables he extended the period from one year to three years: for immovables he abolished the distinction between Italian and provincial land, and required ten years’ possession if the parties were domiciled in the same province, and twenty years’ possession if they were not domiciled in the same province. Further, he introduced a new usucapion (longissimi temporis praescriptio), which was governed by less stringent conditions than the ordinary usucapion (longi temporis praescriptio). It applied both to movables and immovables, was not vitiated by certain flaws in the subject (res furtiva, vi possessa), and needed no support of any titulus, but only required bona fides in its inception on the part of the possessor, Cod. 7, 39, 8. It was completed in thirty years.
Usucapion, particularly in this its later form, requires to be carefully distinguished from the Limitation of actions (temporalis praescriptio) with which it has been co-ordinated by some civilians under the name of Acquisitive, as opposed to Extinctive, Prescription. We shall see, 4 § 110, that all actions were originally divided into temporales and perpetuae, temporales being such as could only be brought within a certain period (e.g. in the case of praetorian actions, a year) from the time when the right of action accrued, perpetuae such as were subject to no such limitation. Subsequently, however, even the latter were limited, and no action could be brought after thirty years from the nativity of the action or the time when the right of action accrued (actio nata), Inst. 4, 12 pr. In the case of personal actions there is no danger of confusing Usucapion and Limitation. Usucapion implies possession, and in the case of personal actions, or jus in personam, no such thing as possession is conceivable, for possession only relates to res corporales. Usucapion and the Limitation of real actions are more similar, but even here a distinction may be recognized. Limitation is the extinction of a right by neglect of the person entitled, by his omission to enforce his remedy: Usucapion is the acquisition of a right by something positive on the part of the acquirer, his strictly defined possession for a certain time. Even extraordinary acquisitive prescription requires, as we have seen, bona fides in the commencement of possession: no such condition is attached to Limitation or extinctive prescription.
English law originally only recognized acquisitive prescription in the case of easements and profits, e.g. rights of way; for the acquisition of which the Prescription Act, 2 and 3 Will. 4, c. 71, requires possession for a fixed period. Moreover, since the Act for the limitation of real actions, 3 and 4 Will. 4, c. 27, deprives a proprietor of land of his right as well as his remedy if he omit to bring his action to recover it within twenty years after the right accrued (a limit which by the 37 and 38 Vict. c. 57 was reduced to twelve years), the principle of Usucapion (Acquisitive prescription) in corporeal as well as incorporeal hereditaments may be said to be now recognized in English real property law, though not very distinctly.
Besides the civil titles which we have examined, two others are mentioned by Ulpian: Singularum rerum dominia nobis adquiruntur mancipatione, traditione, in jure cessione, usucapione, adjudicatione, lege, 19, 2.
Adjudication (for the nature of which see 4 § 42), whereby property might be taken from one individual and vested in another without any of the ordinary methods of conveyance, as in the case of the award of a judex in a partition suit, may be compared in its operation to the vesting orders made by the Court of Chancery under the Trustee Acts. When trustees are disabled by lunacy or infancy from dealing with the estates vested in them, the Court of Chancery is empowered to make orders the effect of which is that the estate becomes immediately vested in the substituted trustees as effectually as if a conveyance had been duly made by the person previously entitled to the legal estate. Another parallel is to be found in the awards of certain commissioners acting under powers given by act of parliament. Thus the order of the Inclosure commissioners for exchange and partition of land closely resembles in subject and effect the adjudicatio of a judex n the actio finium regundorum.
Lex is an ambiguous and miscellaneous title. It is said to include title by caducity (caducum) under the lex Papia Poppaea, and bequest or legacy (legatum), a title deriving its validity from the lex of the Twelve Tables, Ulpian, 19, 17. Extending our view from res singulae, to which Ulpian confines himself, to universitates, lex was an apt denomination of title by will at the period when wills required the ratification of the Comitia Calata, 2 § 101, as at that time testamentary dispositions were really acts of the legislature. Title by lex in this case bears some kind of analogy to conveyances by private act of parliament in English jurisprudence.
It may assist to clear our conception of title if we observe that the title ‘Lege’ is ambiguous, and that (1) while one of its meanings implies an absence of all title, (2) another denotes a miscellaneous group of heterogeneous titles.
(1) The only case in which Law can be said in any distinctive sense to be a cause of acquisition is privilegium or private law. The acquisition of a right by immediate grant from the sovereign (private act of the legislature, private act of parliament) is unlike the acquisition of a person entitled under some general disposition of a universal law. Acquisition by bequest or escheat is not an acquisition by law in any pre-eminent manner, but only in the same degree as is acquisition by mancipation or usucapion or any other title, for all these acquisitions are equally founded on law or some legal disposition of general application. But in acquisition by privilegium there is, in this sense, neither title nor any general law. By a general law is meant a universal proposition, annexing a right or duty to a title: it knows nothing of individual persons, but stops short at classes of persons, classes, that is, defined by the title. Again, title is, properly speaking, a contingent fact distinct from a corresponding law: a fact which may occur an indefinite number of times, and entitle, that is, invest with rights or duties, an indefinite number of persons, in accordance with the dispositions of one and the same unchanging law. Title, loosely and inaccurately defined as a fact investing a person with a right, would include a privilege, i. e. a law conferring a right immediately on a given individual without the intervention of a fact distinguishable from the law; but title, properly defined as an intervening fact through which a law confers a right mediately, excludes privilege.
Whenever there is a genuine title and a general law, the title is interposed between the general right or duty and the particular person therewith invested, just as the middle term is interposed between the major and minor terms of a syllogism. E.g. All persons characterized by the fact B are invested with the right or duty A: the individual C is characterized by this fact B; therefore this individual is invested with the right or duty A. A genuine law is only the major premiss, the proposition stating the general right or duty, all B is A. The condition, represented by the middle term, which connects or disconnects the right or duty with a person is the title. In a privilegium we have no such premisses and no such middle term. The investment of the particular individual C with a general right or duty is not in this case possible, being unwarranted by any genuine title.
(2) In Bequest and loss of a bequest on account of caducity or ereption there is a general law and a genuine title, but the law is not the title, any more than it is in any other mode of acquisition. Either because these modes include fewer voluntary acts than some closely allied modes (for instance, the legatee may acquire ownership of the property bequeathed to him without any act of acceptance on his part), or, for some other reason, divers modes are lumped together under the head of acquisition by lex. The name, however, besides being a misnomer, is merely a sink or receptacle of miscellaneous unrelated titles, just as we shall find in the doctrine of obligations that miscellaneous titles (variae causarum figurae) are lumped together under the denomination of quasi-contract. As to the displacement in the MS. of §§ 62-64 see below, p. 163.
§ 65. Ergo ex his quae diximus apparet quaedam naturali iure alienari, qualia sunt ea quae traditione alienantur; quaedam ciuili, nam mancipationis et in iure cessionis et usucapionis ius proprium est ciuium Romanorum.
Inst. 2, 1, 11.
§ 66. Nec tamen ea tantum, quae traditione nostra fiunt, | naturali nobis ratione adquiruntur, sed etiam—|NA occupando ideo—erimus, quia antea nulli|us essent; qualia sunt omnia quae terra mari caelo capiuntur.
§ 67. Itaque si feram bestiam aut uolucrem aut pis|cem — captum — | —NAeo usque nostrum esse intellegitur, donec nostra custodia coerceatur; cum uero custodiam nostram euaserit et in naturalem libertatem se receperit, rursus occupantis fit, quia nostrum esse desinit; naturalem autem libertatem recipere uidetur, cum aut oculos nostros euaserit, aut licet in conspectu sit nostro, difficilis tamen eius persecutio sit.
Inst 2, 1, 12.
§ 68. In his autem animalibus quae ex consuetudine abire et redire solent, ueluti columbis et apibus, item ceruis qui in siluas ire et redire solent, talem habemus regulam traditam, ut si reuertendi animum habere desierint, etiam nostra esse desinant et fiant occupantium; reuertendi autem animum uidentur desinere habere, cum reuertendi consuetudinem deseruerint.
Inst. 2, 1, 14.
§ 69. Ea quoque quae ex hostibus capiuntur naturali ratione nostra fiunt.
Inst. 2, 1, 17.
§ 70. Sed et id quod per adluuionem nobis adicitur eodem iure nostrum fit; per adluuionem autem id uidetur adici quod ita paulatim flumen agro nostro adicit, ut aestimare non possimus quantum quoquo momento temporis adiciatur; hoc est quod uulgo dicitur per adluuionem id adici uideri quod ita paulatim adicitur, ut oculos nostros fallat.
Inst. 2, 1, 20.
§ 71. Itaque si flumen partem aliquam ex tuo praedio resciderit et ad meum praedium pertulerit, haec pars tua manet.
Inst. 2, 1, 21.
§ 72. At si in medio flumine insula nata sit, haec eorum omnium communis est, qui ab utraque parte fluminis prope ripam praedia possident; si uero non sit in medio flumine, ad eos pertinet qui ab ea parte quae proxima est iuxta ripam praedia habent.
Inst. 2, 1, 22.
§ 73. Praeterea id quod in solo nostro ab aliquo aedificatum est, quamuis ille suo nomine aedificauerit, iure naturali nostrum fit, quia superficies solo cedit.
Inst. 2, 1, 30.
§ 74. Multoque magis id accidit et in planta quam quis in solo nostro posuerit, si modo radicibus terram conplexa fuerit.
Inst. 2, 1, 31.
§ 75. Idem contingit et in frumento, quod in solo nostro ab aliquo satum fuerit.
Inst. 2, 1, 32.
§ 76. Sed si ab eo petamus fundum uel aedificium et inpensas in aedificium uel in seminaria uel in sementem factas ei soluere nolimus, poterit nos per exceptionem doli mali repellere, utique si bonae fidei possessor fuerit.
Inst. l. c.
§ 77. Eadem ratione probatum est quod in chartulis siue membranis meis aliquis scripserit, licet aureis litteris, meum esse, quia litterae chartulis siue membranis cedunt. itaque si ego eos libros easue membranas petam nec inpensam scripturae soluam, per exceptionem doli mali summoueri potero.
Inst. 2, 1, 33.
§ 78. Sed si in tabula mea aliquis pinxerit ueluti imaginem, contra probatur; magis enim dicitur tabulam picturae cedere. cuius diuersitatis uix idonea ratio redditur; certe secundum hanc regulam si me possidente petas imaginem tuam esse, nec soluas pretium tabulae, poteris per exceptionem doli mali summoueri; at si tu possideas, consequens est, ut utilis mihi actio aduersum te dari debeat; quo casu nisi soluam inpensam picturae, poteris me per exceptionem doli mali repellere, utique si bonae fidei possessor fueris. illud palam est, quod siue tu subripueris tabulam siue alius, conpetit mihi furti actio.
Inst. 2, 1, 34.
§ 79. In aliis quoque speciebus naturalis ratio requiritur. proinde si ex uuis 〈aut oliuis aut spicis〉 meis uinum aut oleum aut frumentum feceris, quaeritur utrum meum sit id uinum aut oleum aut frumentum, an tuum. item si ex auro aut argento meo uas aliquod feceris, uel ex tabulis meis nauem aut armarium aut subsellium fabricaueris; item si ex lana mea uestimentum feceris, uel si ex uino et melle meo mulsum feceris, siue ex medicamentis meis emplastrum uel collyrium feceris, 〈quaeritur, utrum tuum sit id quod ex meo effeceris,〉 an meum. quidam materiam et substantiam spectandam esse putant, id est ut cuius materia sit, illius et res quae facta sit uideatur esse, idque maxime placuit Sabino et Cassio. alii uero eius rem esse putant qui fecerit, idque maxime diuersae scholae auctoribus uisum est; sed eum quoque cuius materia et substantia fuerit furti aduersus eum qui subripuerit habere actionem; nec minus aduersus eundem condictionem ei conpetere, quia extinctae res, licet uindicari non possint, condici tamen furibus et quibusdam aliis possessoribus possunt.
Inst. 2, 1, 25.