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QVIBVS ALIENARE LICEAT VEL NON. - 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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QVIBVS ALIENARE LICEAT VEL NON.
§ 62. Accidit aliquando, ut qui dominus sit alienandae rei potestatem non habeat, et qui dominus non sit alienare possit.
Inst. 2, 8 pr.
§ 63. Nam dotale praedium maritus inuita muliere per legem Iuliam prohibetur alienare, quamuis ipsius sit uel mancipatum ei dotis causa uel in iure cessum uel usucaptum. quod quidem ius utrum ad Italica tantum praedia an etiam ad prouincialia pertineat, dubitatur.
Inst. l. c.
§ 64. Ex diuerso agnatus furiosi curator rem furio|si alienare potest ex lege xii tabularum; item procurator—|—NAest; item creditor pignus ex | pactione, quamuis eius ea res non sit. sed hoc forsitan ideo uideatur fieri, quod uoluntate debitoris intellegitur pignus alienari, qui olim pactus est, ut liceret creditori pignus uendere, si pecunia non soluatur.
Inst. 2, 8, 1.
§ 65. Thus it appears that some modes of alienation are based on natural law, as tradition, and others on civil law, as mancipation, surrender before the magistrate, usucapion, for these are titles confined to citizens of Rome.
§ 66. Another title of natural reason, besides Tradition, is Occupation, whereby things previously the property of no one become the property of the first occupant, as the wild inhabitants of earth, air, and water, as soon as they are captured.
§ 67. For wild beasts, birds, and fishes, as soon as they are captured, become, by natural law, the property of the captor, but only continue such so long as they continue in his power; after breaking from his custody and recovering their natural liberty, they may become the property of the next occupant; for the ownership of the first captor is terminated. Their natural liberty is deemed to be recovered when they have escaped from his sight, or, though they continue in his sight, when they are difficult to recapture.
§ 68. In the case of those wild animals, however, which are in the habit of going away and returning, as pigeons, and bees, and deer, which habitually visit the forests and return, the rule has been handed down, that only the cessation of the intention of returning is the termination of ownership, and then the property in them is acquired by the next occupant; the intention of returning is held to be lost when the habit of returning is discontinued.
§ 69. Capture from an enemy is another title of property by natural law.
§ 70. Alluvion is another natural mode of acquisition. Alluvion is an addition of soil to land by a river, so gradual that at a particular moment the amount of accretion cannot be determined; or, to use the common expression, an addition made by alluvion is so gradual as to elude our sight.
§ 71. Accordingly a parcel of your land swept away by a river, and carried down to mine, continues your property.
§ 72. An island that rises in the middle of a river is the common property of the proprietors on both banks of the river; if it is not in the middle of the stream, it belongs to the proprietors of the nearer bank.
§ 73. Again, a building erected on my soil, though the builder has made it on his own account, belongs to me by natural law; for the ownership of a superstructure follows the ownership of the soil.
§ 74. The same occurs a fortiori when trees are planted on my land, provided they have struck root.
§ 75. Similarly, when corn is sown on my land.
§ 76. But if I bring an action to recover the land or the building, and refuse to compensate the other party for his outlay on the building or the plantation or the cornfield, he will defeat my action by the plea of fraud, at any rate if he was a bona fide possessor.
§ 77. On the same principle, the writing inscribed on my paper or parchment, even in letters of gold, becomes mine, for the property in the letters is accessory to the paper or parchment; but if I sue for the books or parchment without offering compensation for the writing, my action will be defeated by the plea of fraud.
§ 78. The canvas belonging to me, on which another man has painted, e. g. a portrait, is subject to a different rule, for the ownership of the canvas is held to be accessory to the painting: a difference which scarcely rests on a sufficient reason. By this rule, it is clear that if I am in possession, and you (the painter) claim the portrait without offering to pay the value of the canvas, I may defeat your claim by the plea of fraud. But if you are in possession, the effect is that I am entitled to an equitable action against you, but in this case unless I offer the price of the painting, you defeat me by the plea of fraud, at any rate if you are a bona fide possessor. It is certain, that, if either you or another purloined the canvas, I can bring an action of theft.
§ 79. On a change of species, also, we have recourse to natural law to determine the proprietor. Thus, if grapes, or olives, or sheaves of corn, belonging to me, are converted by another into wine, or oil, or (threshed out) corn, a question arises whether the property in the corn, wine, or oil, is in me, or in the author of the conversion; so too if my gold or silver is manufactured into a vessel, or a ship, chest, or chair is constructed from my timber, or my wool is made into clothing, or my wine and honey are made into mead, or my drugs into a plaster or eye-salve, it becomes a question whether the ownership of the new product is vested in me or in the manufacturer. According to some, the material or substance is the criterion; that is to say, the owner of the material is to be deemed the owner of the product; and this was the doctrine which commended itself to Sabinus and Cassius; according to others the ownership of the product is in the manufacturer, and this was the doctrine favoured by the opposite school; who further held that the owner of the substance or material could maintain an action of theft against the purloiner, and also an action for damages (condictio), because, though the property which is destroyed cannot be vindicated, this is no bar to a condictio or personal action for damages against the thief and against certain other possessors.
QVIBVS ALIENARE LICEAT VEL NON.
§ 62. It sometimes occurs that an owner has not a power of alienation, and that a person who is not owner has a power of alienation.
§ 63. The alienation of dower land by the husband, without the consent of the wife, is prohibited by the lex Julia, although the husband has become owner of the land by its mancipation to him as dower, or by its surrender to him before a magistrate, or by his usucapion of it. Whether this disability is confined to Italian soil, or extends to the provinces, authorities differ.
§ 64. Contrariwise, an agnate, as a lunatic’s curator, is empowered to aliene the lunatic’s property by the law of the Twelve Tables; and so is a procurator that of his principal (when invested by his principal with free power of administration: Inst. 2, 1, 43). Again, a pledgee, in pursuance of a pact authorizing him to sell, may aliene the pledge, though he is not owner of the thing; this, however, may be said to rest on the assent of the pledgor previously given in the agreement which empowered the pledgee to sell in default of payment.
§ 65. Tradition or transfer of possession, as we have seen, was a natural mode of transferring ownership in such non-mancipable things as were corporeal: in mancipable things it could only transfer bonitary ownership. The nature of this conveyance, which belongs to jus gentium, has been fully explained above, §§ 14 a-27, comm.
Fructus or produce of a thing, when they become distinct entities, belong to the owner of the principal thing, unless specially acquired from him by some one else. They may be so acquired by transfer, in which case one act of assent may suffice as the antecedent to many acts of prehension; for instance, in the gathering (perceptio) of fruits by a usufructuary. Here the taking them occurs from time to time; the will or intention of the owner of the principal thing was manifested once for all when he created the usufruct. But in the case of a hirer of land by mere contract (colonus) a special tradition of the fructus by the owner in each particular case of acquisition is required. Thus if the fructus are res nec mancipi, perception of them, with the consent of the owner, gives him ownership: if they are res mancipi, bona fide possession, which usucapio will ripen into ownership.
Mere severance (separatio) of fruits (fructus) from the soil or parent substance, without any act of appropriation (perceptio), gives to the bona fide possessor, according to Savigny, Besitz, 22 a, bona fide possession, which will be transformed into ownership by usucapion: according to Vangerow, § 326, it gives him immediate and plenary ownership. Windscheid, Pandekten, § 186, notes 11 and 12, takes an intermediate position. Cf. Inst. Just. 2, 1, 35.
If the true owner recovers his land or cattle by vindicatio, the judex will compel a bona fide possessor who is defendant to restore the unconsumed fruits (fructus extantes) but not to make compensation for the consumed fruits (fructus consumpti). The mala fide possessor, on the contrary, acquires no property in the consumed fruits, but is compelled either by the vindicatio by which the principal thing is recovered or by a separate personal action (condictio) to restore their value; he may likewise be compelled to restore the fructus extantes either by the principal vindicatio or by a separate vindicatio. He can be sued for the value of the fruits he has neglected to gather (fructus neglecti) only in the principal vindicatio: their non-existence prevents his being sued for them in a separate vindicatio; and the fact that he is not enriched by them prevents his being sued for them in a separate condictio, Savigny, System, § 267.
§§ 66-69. Occupation gives property in a thing which previously has no owner. Quod enim ante nullius est, id naturali ratione occupanti conceditur, Inst. 2, 1. 12. If a thing had already an owner, it is only after dereliction by him that it can be appropriated by occupation. Dereliction, or renunciation of ownership, requires both the intention to abandon it and an external action. Thus the casting overboard of articles in a tempest to lighten a ship is not dereliction, as there is no intention of abandoning the property in the event of salvage, Inst. 2, 1, 48. Nor does the mere intention of abandonment constitute dereliction of ownership without a throwing away or removal or some other external act; and herein dereliction of ownership differs from dereliction of possession, which does not require this second element. Differentia inter dominium et possessionem haec est, quod dominium nihilo minus ejus manet qui dominus esse non vult, possessio autem recedit ut quisque constituit nolle possidere, Dig. 41, 2, 17. ‘There is this difference between ownership and possession, that ownership continues after the will to own has ceased, whereas possession ceases with the cessation of the will to possess.’
§ 68. Among wild animals (ferae naturae) a distinction is to be drawn. In those of them that are half tamed (mansuefactae), among which are mentioned deer, peacocks, pigeons, bees, property is not limited by strict detention, as in other wild animals, but by animus revertendi. A migrating swarm (examen) of bees, accordingly, would only continue to belong to the owner of the hive as long as it continues in his sight and is easy to recapture, as it has no intention of returning. In tame animals, e. g. dogs or geese, the rights of the owner are not extinguished by their straying without an intention to return. Inst. 2, 1, 12-16.
§§ 76-79. The intimate conjunction of two things, so that they are no longer separable and restorable to their former condition, may produce a transmutation of ownership. A separable junction, as when two flocks of sheep are intermingled, or when a stone is set in a ring, or when two metals are soldered together (plumbatura), or when the grain of one man is mixed with that of another, apart from an agreement to share in common, produces no change of ownership. In one case, however, namely, when material has been used in building a house on another man’s land, although the property of the owner of the material continues, it is in a dormant state since he cannot, so long as it is fixed to the land, vindicate it, ‘quia superficies solo cedit,’ § 73. The Twelve Tables, however, allowed him the actio de tigno juncto to recover double the value.
An inseparable union sometimes produces co-ownership in the whole (communio), sometimes the exclusive ownership of one of the parties (accessio).
When two things belonging to different owners are mixed but neither produce a new species, nor the relation of principal and accessory, e. g. when two similar wines or metals are mixed; or when a new species is produced with the consent of both owners, as when mead is produced by mixing honey and wine, electrum by mixing gold and silver; then each owner loses his separate ownership of a part, and becomes joint owner of the whole. Inst. 2, 1, 27.
When a new species is produced by one owner without the consent of the other, then, according to the law as settled by Justinian, the exclusive ownership is vested in the producer, and the other can only obtain redress by actio in personam for the loss of his ownership.
Further, when the mixture establishes the relation of principal and accessory, that is, when one thing loses its independent existence and becomes a part of the other (accessio), then the ownership in the whole is vested in the owner of the dominant part, accessorium sequitur principale; cf. Dig. 6, 1, 23 Si quis rei suae alienam rem ita adjecerit, ut pars ejus fieret, veluti si quis statuae suae bracchium . . . adjecerit, dominum ejus totius rei effici . . . plerique recte dicunt. It will sometimes be a question which part is to be regarded as principal and which as accessory, and the solution does not depend on their comparative value. The Roman jurists themselves differ sometimes, as is shown in the text, in their application of the principle of accession, but the principle itself seems to be that the part which maintains its previous identity and gives the dominating character to the entire thing is principal, while the part which is merged in the other and so ceases to have an independent existence, is accessory, as e. g. trees of one person planted and taking root in the land of another, are thereby entirely incorporated in the land. So again, a fresco painted by one person on a wall belonging to another is evidently something accessory to the wall. The case of an independent picture is a subject of dispute in this relation. Gaius, § 78, appears to think that it ought to be governed by the analogy of a manuscript, where the property in the writing follows the property in the paper, § 77. It may be said, however, that the principle of accession does not properly apply to a picture or to a manuscript of literary value, since they are new creations, differing in character from the materials in which they are embodied. It was indeed finally settled by Justinian that the property in the picture belonged to the painter, though the latter would be bound, as in similar cases, to make good the loss suffered by the previous owner of the canvas. Inst. 2, 1, 34, cf. Sohm. § 64 n.
The remedy of the ex-proprietor of the accessory is utilis actio, § 78. This appears to be a real action (utilis in rem actio), which, as a real action implies that the plaintiff is owner, seems to mean a Fictitious action, 4 § 34, i. e. one whose formula feigns that the property was never divested by Accession. This may be what Gaius means by utilis actio.
§ 79. Specification or conversion by labour of something so as to constitute a new thing is a title which cannot without violence be brought under either Occupatio or Accessio. Here one person contributes only his labour, whereby he transforms the material or materials belonging to another into a new product (nova species). The Sabinians held that the product belonged (by Accessio?) to the owner of the material, the Proculians (by Occupatio?) to the producer of the specification or conversion. Justinian adopts an intermediate opinion, which Gaius mentions, Dig. 41, 1, 7, 7, cf. Inst. 2, 1, 25, that the product belongs to the producer, provided that it cannot be reduced to its original substance, while if it can be it belongs to the owner of that substance; e. g. a gold or silver vessel belongs to the owner of the gold or silver out of which it was made: and provided further that the change is a genuine fabrication or manufacture; for instance, the mere thrashing out of corn is not sufficient to change the ownership, and therefore the corn belongs to the owner of the sheaves, cf. § 79: and the mere dyeing of wool operates no transfer of ownership to the dyer, Dig. 41, 1, 26, 3.
In the subjoined synopsis of the various titles to ownership which have been considered the proper position of Specification is open to controversy, but it would seem that it should be regarded as a distinct and original mode of acquisition.
Acquisition is either Derivative, that is derived by Succession from some one else, or Original, arising independently of any one else.
Derivative acquisition depends on (1) the will of the previous owner (alienatio, testatio), (2) the disposition of a magistrate or judex (adjudication, addiction, execution), or (3) a direct disposition of law (intestate succession, caducity, forfeiture).
Original acquisition is either independent of Possession or depends on Possession.
Original acquisition independent of Possession is either the effect of Separation or of Conjunction.
Separation is a title to property in the case of Separatio fructuum, which confers property in the fruits on the owner of the principal thing, or on the bona fide possessor of it, or on the emphyteuta.
Conjunction is either the conjunction of equal with equal or the conjunction of accessory with principal.
The conjunction of equal with equal is seen in Confusio, which produces communio or co-proprietorship.
The conjunction of accessory with principal is either of immovable with immovable, instanced in Alluvio:
or of movable with immovable, instanced in Satio, Plantatio, Inaedificatio:
or of movable with movable, instanced in Scriptura, Pictura.
Original acquisition dependent on Possession is either further dependent on Time or is not dependent on Time.
Original acquisition dependent on Possession and further dependent on Time is seen in Usucapio and Praescriptio longi temporis, when this latter became an acquisitive and not simply an extinctive title.
Original acquisition dependent on Possession but independent of Time is seen in Occupatio, or taking possession of a res nullius, including Captio ferarum, Captio hostilis, Inventio derelicti, Inventio thesauri.
§§ 62-64. It is conjectured that by some accidental displacement these three paragraphs have been transposed, and that in their proper order they should follow § 61. There seems no good reason why they should be interposed between the titles of civil law and the titles of natural law.
The lex Julia, relating only to Italian soil, permitted the husband to aliene the dotal land, with the consent of the wife, but prohibited its hypothecation, even with her consent. Justinian extended the prohibition to provincial soil, and to alienation with the wife’s consent, Inst. 2, 8, pr.
In the time of the jurist Javolenus, who flourished under Trajan and Hadrian, and still probably in that of Gaius, the power of sale of a pledge, § 64, was what is known in later jurisprudence as accidentale negotii, requiring a special agreement, Dig. 47, 2, 73, where by an omission of the compilers the law is not brought up to date. But in later law, as early at least as the time of Ulpian it had become a necessary consequence of the transaction—essentiale negotii—so that a contrary agreement is inoperative, except that it imposes a necessity of three denunciations or demands of payment, Dig. 13, 7, 4.