The law of property at the time of the XII Tables (II): Ownership

We have spoken so far of ownership as something which explains itself, but in order to understand the next point it is necessary to enquire a little more closely into its nature. The Roman law of classical times is dominated by the absolute conception of ownership which it has evolved and by the action through which this right is asserted, the vindicatio. Ownership, in the developed law, may be defined as the unrestricted right of control over a physical thing, and whosoever has this right can claim the thing he owns wherever it is and no matter who possesses it.

If I possess a thing and you own it, then all you have to do is to prove your ownership and I must give it up; it is not necessary for you to allege that I have done you any wrong. I, on the other hand, the possessor, have nothing to do but to sit tight and wait for you to prove your right; if you do not succeed in proving that you are owner, I remain in possession. Now this very clear-cut conception is not to be found in all, or even most systems of law. English law, for instance, has never known an action corresponding to the vindicatio, at any rate with respect to movables. The action by which an owner recovers his thing which has got out of his possession all allege that the defendant "unjustly detains" the thing or that the plaintiff lost it, that it came into the hands of the defendant and that the defendant has converted it to his own use; to use technical language, the actions for the recovery of movables all "sound in tort". Further, the wrong alleged is, strictly, not one to ownership, but to possession, for, if the thing be "bailed", e.g. lent, by the owner to another, it is the bailee who can bring the action against the third party in whose hands the thing is found, the bailor being originally confined to his rights against the bailee. Hence it can be said that "although the bailor was the owner, the sum of his rights as owner was originally his better right as against the bailee to get possession; for this better right to get possession was the only form of ownership which the mediaeval common law recognised". This idea of a relative right to possession as contrasted with the absolute Roman dominium, is common to other Germanic systems of law besides the English, and it indeed appears that the Greeks also knew only of a similar relative right.

The law of property at the time of the XII Tables (I): Res mancipi and nec mancipi

Most, if not all, systems of law are compelled by the very nature of things to distinguish landed from all other types of property, for land is necessary for the production of food and the erection of dwelling-places, and, unlike other things, it cannot be moved. In English law, in the guise of the distinction between "real" and "personal" property, this contrast is particularly marked; in Roman law, though it existed as early as the XII Tables (1), its importance is overshadowed by a different and purely Roman distinction, that between res mancipi and res nec mancipi.

Res mancipi were land subject to Roman ownership (2), slaves, beasts of draft and burden, including cattle, and rustic servitudes belonging to land subject to Roman ownership; res nec mancipi were all other things. In the developed law the point of the distinction is that full Quiritarian ownership in res mancipi can only be transferred by the solemn method of conveyance known as mancipatio or the equivalent ceremony of in iure cessio, whereas the ownership of res nec mancipi can be transferred by mere delivery (traditio). Thus if A wants to make B the gift of a sheep and delivers it to him for that purpose the sheep becomes immediately the full Quiritarian property of B, but if he wants to give him an ox and does the same the ox remains the property ex iure Quiritium of A, because an ox is a res mancipi whereas a sheep is not.

Property rights (IV): Other iura in re aliena

- 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.

Property rights (III): Servitudes

A servitude was said to exist where X possessed rights in rem over the property of Y. In the following cases, for example, the property of Titinius is encumbered with servitudes in favour to Cassius: Where Cassius enjoys the right of drawing water from a fountain on Titinius's land; where Cassius enjoys the right of sailing on Titinius's lake; where Cassius enjoys a right to the labour of Titinius's slave.

Servitudes might be praedial or personal and praedial servitudes could be rustic (iura praediorum rusticorum) or urban (iura praediorum urbanorum).

Property rights (II): Rights over the property of another

In some cases a person owned property, but his rights over such property might be limited.

- Rights over the property of another: Examples

+ Veratius owns grazing land on which Lucius has a right to pasture his cattle.

Property rights (I): Rights of ownership and the right to alienate

- The rights of ownership

+ Three important rights

Dominium (full ownership) gave the owner three important rights:

. Ius utendi, the right to use the property.

. Ius fruendi, the right to enjoy the fruits and profits of the property.

. Ius abutendi, the right to consume or destroy the property.

+ Rights in rem

Rights such as these were known as real rights (rights in rem) because the owner could assert these rights "against the world", whereas personal rights (rights in personam) could be asserted only against another person.

Example: Caius employs Publius to build a house. The agreement between them gives Caius a right in personam against Publius. On the completion of the house, Caius, its owner, acquires rights in rem concerning the property, which can be asserted "against the world".

- The right to alienate

Certain persons were deprived of the right to alienate their property freely, e.g.