- Superficies (= a building attached to the soil)
+ Definition
A right to the enjoyment, in perpetuity or for a long period, of a building upon the land of another.
+ Rights of the superficiarius
He could use the building and could alienate or pledge it. He had no rights over the land and paid a ground rent (solarium).
- Emphyteusis
+ Definition
A grant of full rights of ownership over the land of another in perpetuity or for a long period subject to forfeiture under particular circumstances and subject to the payment of a yearly rent.
+ Origin
Lands taken from the State's enemies were leased by the State in perpetuity or for long periods; these lands were known as agri vectigali (vectigal = rent). By the time of the Empire tenants had rights in rem over such leases, which were given the Greek name of emphyteusis.
+ Was the emphyteuta a purchaser or hirer of the land?
This question was settled by the Emperor Zeno who considered the ius emphyteuticarium to be neither ownership nor lease; it was held to be governed by its own special type of contract.
+ Rights and duties of the emphyteuta
He had to pay the annual rent, failing which he could be ejected (after 3 years non-payment under Justinian); he had to cultivate the land; he had to manage the property so that its value did not fall; he had to manage the property so that its value did not fall; he had to pay any taxes on the land and deliver the receipts to the owner; he could use and enjoy the land and its fruits and could alienate or pass the emphyteusis to his heirs; he could modify the character of the land provided that he did not damage it.
+ Forfeiture
On non-payment or rent; on proof that the property had been allowed to deteriorate; on an irregular attempt to transfer the emphyteusis, e.g. without giving notice of sale.
Note:
If the emphyteuta wished to sell the property he had to obtain the owner's consent which could be given subject to an indemnification of 2% of the purchase price. The owner could also pre-empt, but had to state his intention to buy within 2 months.
Where, in an attempt to cause a forfeiture, the owner refused to accept the rent, the emphyteuta could, in the presence of a witness, deposit the money in a sealed container. This was held to be an effective tender of payment.
- Mortgages
Security for a debt owed by X to Y might be personal o real. The real mortgage took the form of Y's being granted rights over X's property. The Roman mortgage developed in three forms: the first form was fiducia, the second was pignus, the third was hypotheca. These are considered in turn below.
- Mancipatio cum fiducia (fiducia = trust)
The debtor (mortgagor) transferred by mancipatio the ownership and possession of res mancipi to the creditor (mortgagee). Ownership and possession had to be reconveyed to the mortgagor on repayment of the debt. The mortgagor was protected by the actio fiduciae; the mortgagee had the counter-action contraria actio fiduciae.
- Pignus (pledge)
Transfer of possession, but not ownership, of res mancipi or res nec mancipi, by the mortgagor to the mortgagee. The mode of transfer was traditio. On payment of principal and interest the property had to be delivered up to the debtor. At the time of Justinian the mortgagee could sell the property after three notices and a delay of two years. Should he have been unable to sell the property he was allowed to present a petition to the Emperor requesting ownership of the property. Where the petition was granted the mortgagor had an actio in factum (later replaced by the actio pigneraticia) to enforce reconveyance of possession.
- Hypotheca (= mortgage)
This was a Praetorian mode of mortgage under which the mortgagor passed neither ownership nor possession of the mortgaged property, but agreed to hold certain things as security for the debt. An actio Serviana, under which a landlord was given agricultural implements and stock as a security for his tenant's rents, was extended so that it secured the rights of any mortgagee.
- Tacita hypotheca (mortgages by operation of law)
These charges over property were implied by law and did not arise out of agreement. Examples were:
+ The Fiscus (Treasury) had a charge on a debtor's property for his taxes.
+ Legatees had a charge over a testator's estate for payment of legacies.
+ Wives had a charge for return of the dos.
+ Bankers had charges on land bought with money they had lent.
+ Pupilli had a charge over property bought with their money by tutors.
Note: A rural hypothec existed in favour of a landlord over his tenant's crops; an urban hypothec existed in favour of a landlord over his tenant's furniture (but not in the case of a farm).
- Successive Mortgages
Assume that Brutus owns land worth 4,000 aurei. He gives a hypothec on it for debts of 2,000 aurei to Cassius and, later, a further hypothec for a debt of 500 aurei to Publius and for 1,000 aurei to Trebonius. Provided that the value of Brutus's property did not fall below 3,500 aurei, Cassius, Publius and Trebonius would have adequaete security. If the value of the property fell to 2,500 aurei, who would receive payment? The principle adopted was (as in English law) qui prior est tempore potior iure (he who is first in time has the strongest claim in law). Hence, Cassius and Publius would be paid. The application of this principle took second place, however, to the demands of the Fiscus for debts arising from taxes and to a wife suing for the return of dos.
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- Property rights
+ Property rights (I): Rights of ownership and the right to alienate
+ Property rights (II): Rights over the property of another
+ Property rights (III): Servitudes
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Source:
Roman Law, L. B. Curzon, pages 94 - 97.
