Under ius civile ownership could be acquired in the following ways: Mancipatio, in iure cessio, lege, adjudicatio, litis aestimatio, donatio and usucapio.
- Mancipatio (mancipation)
+ Mancipation: Its meaning
Mancipation was a fictitious sale. Assume that Brutus is acquiring property by mancipation from Trebonius. In the presence of five Roman citizens and a libripens, who holds the bronze balance, Brutus grasps the property and declares, "This thing I state to be mine by quiritary right and has been bought by me with this bronze piece and bronze balance." Brutus strikes the balance with a piece of bronze which is given to Trebonius as the price.
+ Mancipatio: Its use
Only res mancipi could be conveyed by mancipation. Note its use in testamentum per aes et libram, emancipatio and in adoptio.
Note:
Where the property to be transferred was immovable, only its symbolic presence at the place of sale was required.
In time, the ceremony of mancipation disappeared, having given way to the transfer of ownership by traditio.
- In iure cessio (cession before the court)
+ In iure cessio: Its meaning
In iure cessio was a transfer involving the fiction of vindication. Assume that Brutus wishes to acquire property from Trebonius in this mode. Brutus, in the presence of a magistrate, grasps the property and says, "This thing, I state, is mine, ex iure Quiritium." The magistrate asks Trebonius whether he wishes to state a counter-claim. Trebonius says, "No" or remains silent. The magistrate then awards the property to Brutus. Of this mode of transfer it has been said, "The owner cedes, the cessionary vindicates, the magistrate awards."
+ In iure cessio: Its use
The transfer of corporeal property, both res mancipi and res nec mancipi, could be effected in this mode. Usufructs and praedial servitudes could be created and extinguished by this method.
Note:
The effective acquisition of property in this manner was possible only if the property was capable of acquisition ex iure Quiritium.
Mancipatio and in iure cessio had disappeared by the time of Justinian.
- Lege (by statute)
+ Lege: Its meaning
The vesting of property in a person by title derived from a lex.
+ Example
Constitution of Valentinian and Theodosius.
- Adjudicatio (by judicial award)
+ Adjudicatio: Its meaning
In actions for the division of property (judicia divisoria) the judge could divide the property among the parties.
+ Examples
Actio communi dividundo (an action for the division of property held in common); actio finium regundorum (an action for deciding boundaries).
- Litis aestimatio (estimate of liability in a matter in issue)
A judge, in an action for the restoration of property, could order the possessor to restore it to the plaintiff. Plaintiff might then estimate its value and defendant might be allowed to keep the property on payment of its value.
- Donatio (by gift)
+ Types of gift
Donationes mortis causa and donationes inter vivos.
+ Donationes inter vivos (gifts between living persons)
Under Justinian gifts over 500 solidi (200 solidi under Constantine) required registration. A donor who was sued on his promise could plead the beneficium competentiae if there was a possibility of the gift preventing payment of his creditors. Donationes could be revoked where the donee had displayed considerable ingratitude to the donor. Under Justinian a gift to a freedman was revocable only where the donor had been childless when the gift was made and where, subsequently, children had been born to him.
- Usucapio (acquisition of ownership by long use)
+ Usucapio: Its meaning
Under certain circumstances it was possible for a Roman citizen to acquire ownership of property, or be confirmed in a defective title, by lapse of time.
+ Usucapio: Necessary conditions
The property must have been acquired legally; the possessor must have had commercium and must have been in actual possession; the property had to be capable of being alienated.
+ Period os usucapio
By the XII Tables, two years for land and one year for other things. Any interruption of this period (usurpatio), e.g. by forcible ejection, extinguished a previous period of possession. An heir to property could add the uninterrupted period of possession of the previous holder to his own period of possession. Should a possessor lose possession before the period of usucapion had ended, the Praetor could allow him an actio Publiciana in rem; this permitted him to recover as though the period had ended.
- Reforms of Justinian
In A.D. 528-531, Justinian reformed and merged usucapio and longi temporis praescriptio. The term usucapio was used only in connection with the acquisition of movables; the period was to be 3 years. The term longi temporis praescriptio was limited to the acquisition of immovables; the period was to be 10 or 20 years. Longissimi temporis praescriptio (prescription by the longest period of time): a bona fide possessor who lacked a just title and who had held the property for 30 years could vindicate such property from the owner. It was essential, however, that the property should have been obtained without violence. Actions by the original owner were barred after 30 years (following an enactment of Theodosius).
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- Ownership and its acquisition in Roman Law
+ Ownership and possession
+ Ownership under Ius gentium
+ Ownership acquired through an agent
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Source:
Roman Law, L. B. Curzon, page 82 - 85.
