The owner of property may not always be in possession of it. Example: Balbus owns a horse which is stolen by Pindarus. After the theft Pindarus has possession of the horse, but the ownership remains vested in Balbus.
Conversely, one may have legal possession of property, while another has its ownership.
Example: Maevius occupies a farm as the tenant of Seius. Seius has the ownership, Maevius is in possession.
To have mere physical control in possession was described as detentio, or naturalis possessio. Mere detentio conferred no rights on the possessor. Where detentio was accompanied by animus possidendi (i.e. the intention to deal with the property as though one owned it), this was referred to as possessio, or civilis possessio. Possessio was often protected by Praetorian Interdicts.
- Quiritary ownership (Dominium ex iure Quiritium)
The term "quiritary" was possibly derived from Quirinus, the name bestowed, after the apotheosis, on Romulus. Romans were known at one time as Populus Romanus Quirites. Under ius civile, only quiritary ownership was recognised as conferring dominium (i.e. full ownership). It was available only to those who possessed Roman citizenship.
- Bonitary ownership (bona = possessions)
+ A person might have received res mancipi by traditio instead of having received them by the formal method of mancipatio. In such a case he did not obtain quiritary ownership. An informal acquisition of ownership effected in this and some other modes was protected by the Praetor. Thus, where A had transferred res mancipi to B by traditio, instead of by mancipatio, and A had then attempted to recover the res by an action, the Praetor allowed B to plead, against A, the exceptio rei venditae et traditae. This directed the judge to absolve B if the thing had been sold and delivered to him by A. The ownership thus acquired by B was known as bonitary ownership. Ownership by occupatio of abandoned things usually conferred bonitary ownership.
+ The actio Publiciana (introduced by the Praetor Publius, c. 66 B.C.) was available in the following cases:
. To assist a bonitary owner. In the example above, B could acquire dominium by usucaption (i.e. possession over a period of time). If B's period of occupation was then interrupted he was allowed to bring the actio Publiciana on the fictitious ground that his period of usucaption was complete.
. To assist a bona fide possessor. If X purchases from Y, in good faith, res mancipi or res nec mancipi, and Y is not the real owner, X has no action if the real owner evicts him. In such case X can bring an action against Y. Should X be disturbed in his possession by any other person he can bring the actio Publiciana and will succeed if his title is prior to defendant's and derived from the same source.
Note: Justinian ended the distinction between bonitary and quiritary ownership.
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- Ownership and its acquisition in Roman Law
+ Ownership under Ius gentium
+ Ownership under Ius civile
+ Ownership acquired through an agent
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Source:
Roman Law, L. B. Curzon, page 77 - 78.
