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The Law of Property Cheat Sheet by

SA Law of property.
law     roman     property     acquisition

Classi­fic­ation of Roman Private Law

Corporeal & incorp­oreal
Public & private
Movables & immovables
Res fungibiles & res non fungibiles
Corporeal = touchable
 
Immovables = land & everything attached
Res fungibles = replac­eable thus generic
Only corporeal = poss­ess­able
  
Opp = specific item

Real vs. Personal Rights

Real
Personal
Relati­onships between legal subjects and objects
Relati­onships between legal subjects
A right over a thing which is enforc­eable against the whole world
A right against a person which is enforc­eable against a part­icular person
Object of the right: thing/­pro­perty
Object of the right: a perfor­mance by a specific person
Real rights are transf­erred through an overt and public act
Personal rights are transf­erred through an agreement
E.g. Ownership
E.g. Obliga­tions

Roman Law on Ownership (dominium)

Essentials
Limita­tions in the interest of...
Protection
Commercium
Neighbours
Real action = rei vindicatio
Property capable of private ownership
Land
Approp­riate method of acquis­ition
Co-own­ership
 
Imposed by themselves or predec­essors
Concept changed from early Roman law until the period of Justinian. Roman law eventually recognized ownership (dominum) as the strongest right over the thing and weighed the claims of third parties to the thing against that right.

Acquis­ition of Ownership

Original
Derivative
W/o interv­ention or dependence
Transf­erred
1. Occupatio
1. Tradicio (delivery)
2. Accessio
3. Specif­icatio
 

Specif­icatio

Who became the owner of the new object
Sabin­ian­-Pr­oculian debate:
Sabinians: owner of material
Procul­ians: maker/­creator
Middle view:
Justinian: Reducible new thing = owner of material. Otherwise ownership = maker/­creator
Remedies: if the maker acquired ownership in good faith and was in possession (if not, then entitled to the rei vindic­atio),
the owner of the materials had no remedy.
However, if the maker acted in bad faith, he could be sued for theft but was
entitled to the new thing.
The process of creating or bringing into existence a new object (nova species).
Only applied in circum­stances where a new thing is creates. Altera­tions not suffic­ient.

Accessio

Immovables
Movables
Basic rule: Anything that was attached to the land became part of it, since land was regarded as the principle thing
Identity test: the thing that gave its identity or name to the new or composite things, counted as the principle thing
Applied to buildings
Other seldom used altern­ative tests: financial consid­era­tions or the relative size of the joining things
Harvesting of plants = no effect
Reme­dies: the owner of the accessory thing claim the value of his property or the owner of the principle thing not in possession could claim it back with rei vindicatio but had to pay the value of the accessory
Once plants take root - belongs to owner of land
However, the mala fide owner lost his propri­etary rights.
Def: Joining together (through human conduct or natural forces) oftwo things that belonged to different owners
 

Occupatio

Wild animals
Abandoned things
Enemy Property
Take effective or lasting control
Owner must have intended to be rid of the property
Immovables became the property of the state
Escaped animals = res nullius again...
Sabini­an-­Pro­culian debate
Movables became property of the person who captured them or the commanding officer
Unless they had animus revertendi (habit of returning to the owner)
Explan­ation: taking possession of things res nulius

Traditio

Delivery
Intention & iusta causa
Traditio longa manu - long-h­anded delivery
Lawful cause
Traditio brevi manu - short-­handed delivery (trans­feree already had control)
What if the parties were mistaken as to the iusta causa?
Consti­tutum posses­sorium - (opposite of traditio brevi manu) transferor agreed to pass ownership of the thing to the transf­eree, but the former retained temporary control
Putative mistakes: transferor may have intended a sale, whereas the transferee though he was receiving a gift
Traditio symbolica - symbolic transfer
Material mistakes
The two basic essent­ials: delivery and the approp­riate intent
Nemo plus iurisrule: no one could transfer more rights to another than he himself had

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