Under ius gentium ownership could be acquired in the following ways: Traditio, occupatio, specificatio, accessio, fructuum perceptio and separatio and longi temporis praescriptio.
- Traditio (delivery)
+ Traditio: Its meaning
A transfer of possession from A to B, with the intention of tranferring ownership, resulting in the vesting of ownership in B.
- Traditio: Necessary conditions
+ The property transferred must be res nec mancipi.
+ A must have the intention to transfer ownership to B, and B must have the intention to receive it.
+ A must be competent to transfer, and B to acquire, in this mode.
+ The property must be capable of delivery and of acquisition by delivery.
+ The property must be transferred by the owner or his authorised agent.
+ Transfer must be by physical or constructive delivery. Constructive delivery could be: traditio brevi manu (delivery with the short hand), where a transferee had possession but not ownership of the property, e.g. Brutus has borrowed a plough from Gaius and Gaius then gives it to him; traditio longa manu (delivery with the long hand), where property is placed in sight of the transferee who is told to take it; symbolic delivery, e.g. by delivering the keys to a granary, so that the transferee acquires possession of the grain; constitutum possessorium (agreement to possess), e.g. Seius owns a plough and keeps possession of it while agreeing to its ownership being vested in Marcus.
Note:
. Because traditio was informal it could be carried out by a representative of the owner.
. In the case of a contract of sale, delivery did not transfer ownership until the price had been paid.
- Occupatio (occupation)
+ Occupation: Its meaning
To seize a res nullius with the intention of dealing with it as one's own property.
+ Things captured from the enemy
These generally became the property of the captors, with the exception of immovables, which were taken by the State.
+ Animals ferae naturae (naturally wild)
Wild birds and beasts, for example, became the property of the taker and remained his for as long as they were under his control.
Example: Lucius enters on Casca's land without permission and takes a wild bird. The bird was considered to belong to Lucius.
+ Animals mansuetae naturae (naturally tame)
These animals were creatures which, although naturally wild, had been tamed and had the animus revertendi (habit of going away and returning). Whilst the animus revertendi continues they remain the property of their owner.
+ Precious stones found on the seashore
These belonged to the finder.
+ Unnoccupied islands in the sea
In the rare event of an island 'springing up' in the sea, its ownership went to the first occupant.
Note: Under Hadrian, a finder of abandoned treasure-trove (thesaurus) took an equal share with the land owner. But in the event of his having entered on the land with the deliberate intention of looking for treasure, treasure so found belonged entirely to the land owner.
- Specificatio (specification)
+ Specificatio: Its meaning
The creation from another's material of a thing "of a new kind" (nova species), e.g. a seat made from wood, or bronze transformed into an ornament.
+ Ownership of the new article
The answer of the Proculians: the creator of the new article. The answer of the Sabinians: the creator of the material. Justinian's solution: if the article was not reducible to its original form it belonged to the maker, but if it was reducible it belonged to the owner of the material; if any part of the material belonged the maker the nova species belonged to him.
Example: Pindarus uses gold belonging to Aulus in order to fashion a goblet. In a dispute as to possession of the goblet, in the time of Justinian, since the goblet can be reduced to its original form it would belong to Aulus, who would have to compensate Pindarus for his work.
- Accessio (accession)
+ Accession: Its meaning
An occurrence in which things under different ownership combine physically and cannot be separated or restored to their original condition, as, for example, where a portion of Titinius's field is swept away by a river in flood and becomes attached to a river bank belonging to Publius.
+ Alluvio (earth deposited by water)
Where silt is deposited on the banks of a river, the owner of the banks becomes owner of the deposit.
+ Plantatio (planting) and satio (sowing)
Brutus's seed, scattered on Lucius's field, belongs to Brutus until it takes root in Lucius's land.
+ Natural increment
He who owned the female parent generally owned its offspring.
+ Commixtio and confusio (mixing of solids and liquids)
Where the solids can be separated with ease (e.g. a flock of sheep) there is no resultant common ownership; where this is not possible (e.g. where X's grain is mixed with Y's grain) there is common ownership of the mixture.
+ Inaedificatio (building)
The general rule was that anything built on the soil belonged to it. Where A built on B's land, the general rule was that the owner of the principal (B) owned the accessory (the building). By a legal fiction the owner of materials remained their owner and could demand their return on the building's being demolished. The XII Tables prohibited such an owner from insisting on the demolition of the building. Hence, rules for compensation were evolved. They were:
. Where A built, bona fide, on A's land with B's material, B could bring an actio in factum for the value of the materials used, or an action for the materials on the destruction of the building.
. Where A built mala fide on A's land with B's materials, B could bring the actio de tigno injuncto, or the actio ad exhibendum, or the actio furti if the materials when the building was demolished.
. Where A built on B's land with A's materials, if A was in possession of the land and acted bona fide he could claim compensation from B. If A was not in possession and acted bona fide he could claim the materials on destruction of the building.
+ Islands emerging in river beds
Where an island emerged in the middle of a river it belonged to the riparian owners in proportion to the length of the river banks they owned.
+ Avulsio
Where A's land was swept away by a river and combined with B's, the land belonged to B as soon as any trees on A's land took root on B's soil.
+ Scriptura
X writes verses on parchment belonging to Y. The whole belongs to Y. Where Y makes a claim to the parchment and refuses to pay X, X can raise in a subsequent action the exceptio doli.
+ Pictura
Where P paints on Q's tablets, the tablets were held to be accessory to the painting and P was considered to be their owner.
- Fructuum perceptio and separatio (perception and separation of fruits)
+ Its meaning
The right to acquire the fruits of land.
+ What was included
The produce of fields and gardens under cultivation; the offspring of animals; rents from property.
- Longi temporis praescriptio (prescription over a long period a time)
+ Longi temporis praescriptio: Its meaning
By retaining provincial land and some movables for an uninterrupted period of ten years (where owner and possessor lived in the same municipaly or, under Justinian, in the same province) or twenty years in other cases, the possessor could acquire ownership.
+ Necessary conditions
There must be possessio, not merely detentio; the land had to be capable of being alienated; the persons concerned must have commercium (the right to hold property and to make contracts); there must be just title.
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- Ownership and its acquisition in Roman Law
+ Ownership and possession
+ Ownership under Ius civile
+ Ownership acquired through an agent
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Source:
Roman Law, L. B. Curzon, page 78 - 82.
