ROMAN LAW OF PROPERTY. Working Questions IV

 Juventa (above), winner of the Miss Rome competition in the year 113AD and wine aficionadoSpecificatio, fructus & usucapio (and some other things) 

1. Javolena is the bonitary owner of a lovely little vineyard (how do you suppose she became that?) and has been tending it for several months. She decides to make some fruit juice, and collects a pail full of grapes and starts crushing them underfoot. Eventually she has an entirely drinkable amount of juice. Does she own the juice? If yes or no, what is the legal basis for your answer?
2. Without knowing anything about him, Calpurnia buys some clay from Titus, who has stolen it. She makes a lovely statue from it, and has a bit of clay left which she leaves in a cold storage unit she set up for that very purpose. She burnishes the statue in a kiln. Does she own the statue? On what legal basis? Does she own the blob of clay? On what legal basis?
3. Juventa likes wine. She receives a bottle of Plonk Estate Falernian as a gift from a friend, and unwittingly mixes it in a little vat at home with a bottle of identical wine belonging to her housemate. What are the legal consequences of this?
4. It’s the year 200BC. Titia picks up a pair of spectacles she saw someone throw into a rubbish bin. Does she become the owner? What conditions have to be met for that to happen, if it is indeed possible?
5. If the year in question 5 is in fact 100AD, how would your answer differ?
6. Think about the function of usucapio in Roman society. Was it a useful legal institution? If yes, why? If no, why not?
7. What problems are there inherent in usucapio?
8. Specificatio and accessio are merely species of the same legal notion. Do you agree? Or disagree? Discuss.
9. It’s the year 100AD and Lavernia is a usufructuary of a tract of land in Pisa. What does this limited real right entitle her to do in respect of the land? Make a list of things she may do, and a list of things she is not permitted to do in respect of it.

10. On the piece of Pisan land, there stands a fig tree. Eleven figs are blown to the ground in a gust of wind, and five fall on the land of which Lavernia is the usufructuary. The other six land on her neighbours land. How might Lavernia become owner of the figs?


Falernian Wine (Poem 27)
by Catullus
Waiter-boy, pour me stronger cups


of old Falernian, since the laws of Postumia


– the mistress – demand it,


she who’s juicier then the juicy grape.


But you, water, the death of wine, shoo off:


far off, wherever, be off to those whose throats are dry.


This wine is liquidated Bacchus.

Who was Catullus?
Wikipedia says:
Gaius Valerius Catullus (ca. 84 BC – ca. 54 BC) was a Latin poet of the Republican period. His surviving works are still read widely, and continue to influence poetry and other forms of art.

It was probably in Rome that Catullus fell deeply in love with the Lesbia of his poems, who is usually identified with Clodia Metelli, a sophisticated woman from the aristocratic house of patrician Claudii Pulchri and sister of the infamous Publius Clodius Pulcher. In his poems, Catullus describes several stages of their relationship: initial euphoria, doubts, separation, and his wrenching feelings of loss. Many questions must remain unanswered – most importantly, it is not clear why the couple split up – but Catullus’ poems about the relationship display striking depth and psychological insight. One such poem with insight to the reasons of his parting with Lesbia is poem 11, which is addressed to his companions Furius and Aurelius and requests them simply to pass a farewell insult to Lesbia.
Further reading: For fun, find English translations of Catullus’ poems online. They are readily available.
What was Falernian wine?
Wikipedia says:

Falernian wine (Latin: Falernum) was produced from Aglianico grapes (and possibly Greco as well) on the slopes of Mount Falernus near the border of Latium and Campania where it became the most renowned wine produced in ancient Rome, considered a “cult wine” for its time, often mentioned in Roman literature but has since disappeared.

Questions for your general education:

1. Who was Bacchus?
2. What is the English adjective we derive from the name Bacchus? How is it used? Use it in a sentence.

3. Who painted the famous picture below? When?

ROMAN LAW OF PROPERTY. Third Set of Questions

Foundations of South African LawWorking Questions III
Accessio

1. Janus walks home and, just before he gets there, he sees his neighbour Paul has left some bricks and pieces of wood near the gate of his (Paul’s) property, some clearly within his property and some just outside the gate on the pavement. Since Janus had for some time been planning to build a hut on his own property, he takes this (what he sees as) discarded rubble and transfers it to his property. He proceeds to build a hut on his land. Consider the following questions.


1.1 Are the bricks and wood res derelictae? What information would you need to make such a determination?
1.2 What is the relevance of the question under 1?
1.3 Assuming that the material has not been abandoned by Paul, would he have a remedy against Janus before Janus had started building the hut?
1.4 Would he have a remedy after the hut was fully built? What would the answer to this question depend upon? (In other words: does the answer to the last question depend upon Janus’ state of mind?)
1.5 Does your answer under 1.4 depend upon the date? In other words, did the law change over time, and, if so, how?
1.6 Do you think it’s a good idea for a legal system to encourage huts that have been built to be broken down? Why? Or, why not? If you think this is a good idea, in what circumstances would it be justified? If your answer is no, what other remedy would someone have if his res (things) have been taken by another and built into a building on the latter’s land?
1.7 What is the position in the modern South African law? (Explore.)
1.8 Refer again to the vignette (story) above: what would the legal position be if Paul had in fact built a hut on a tract of land which he thought belonged to him, but in fact belonged to Janus?
1.9 Does your answer under 1.8 depend upon Paul’s state of mind? Explain. If your answer is that it does in fact depend upon Paul’s state of mind, do any difficulties arise as a result of this state of the law. Consider.



1.10 Are there any similarities between the rules adverted to above and rules which emerged in indigenous African legal systems. What were the legal solutions devised for these (surely common) problems in indigenous African legal systems? If you do find similarities, what does this tell one about the emergence of early legal ideas?

Law of Property Handout II. Modes of Acquisition Summary

FOUNDATIONS OF SOUTH AFRICAN LAW
Law of Property Handout II
Modes of Aqcuisition Summary

Mancipatio:

A ritualistic formal act of CIVIL LAW whereby ownership of certain classes of property (res mancipi) was transferred. Res mancipi: slaves, animals of burden or italic lands.


It was an act per aes et libram as an archaic reminiscence: The purchaser (qui mancipio accipit), taking hold of the thing, says: I affirm that this slave (homo) is mine Ex Jure Quiritium, and he is purchased by me with this piece of money (aes) and brazen scales. He then strikes the scales with the piece of money, and gives it to the seller as a symbol of the price (quasi pretii loco). Mancipatio could only take place between Roman citizens or those who had the Commercium; (Gaius, I.119).

In iure Cessio:

Was a formal/ritual civil law mode of transferring ownership by means of a fictitious law suit, making an effective cession of rights before a court. It was applicable to res Mancipi and Nec Mancipi, and also to Res Incorporales, which, from their nature, were incapable of tradition (inheritances, for example). The parties to this transaction were the owner (dominus qui cedit), the person to whom it was intended to transfer the ownership (vindicans, cui ceditur) and the magistratus, qui addicit. The person to whom the ownership was to be transferred, claimed the thing as his own in presence of the magistratus and the real owner; the magistratus called upon the owner for his defence, and on his declaring that he had none to make, or remaining silent, the magistratus decreed (addixit) the thing to the claimant. This proceeding was a LEGIS ACTIO.

Traditio:

The most common ius gentium mode of acquisition of ownership. It was the informal transfer of physical possession of an object.

Requirements

1. RES NEC MANCIPI: only things of this sort were transferable through traditio.

2. CORPUS: Physical transfer of the object.

3. ANIMUS: Intention from the original owner to transfer ownership to the new one and from the new owner to acquire the ownership.

4. IUSTA CAUSA: a transaction recognized by the law (ius gentium)

5. Qualification of the transferor: He had to be the actual owner of the thing.

OTHER CLASSES/VARIATIONS OF TRADITIO: were introduced to cater for specific circumstances:

TRADITIO BREVI MANU: It was a form of traditio where actual physical delivery of the object did not take place, because the new owner was already in possession of it when traditio occurred. For example, when the new owner had borrowed the thing and was in possession of it at the time of the traditio.

TRADITIO LONGA MANU: A form of traditio where the object was merely pointed out (e.g. land) instead of transferring actual physical control of it. The object had to be in sight of the transferor in order for the transaction to be valid.

CONSTITUTUUM POSSESSORIUM: When the original owner transfer the right of ownership but keeps being the possessor of the thing, for example as a tenant, he constitutes himself from owner to possessor, there is a change in legal status but not a physical delivery of the thing.

Usucapio:

Original mode of acquisition (as opposed to derivative because the right of ownership is not derived from someone else’s right but from fulfillment of the requirements of the law) consisting on the acquisition of ownership of property by using it for a period of time.

Characteristics:

a. It was a remedy for those who had the intention to transfer the ownership of a thing but did not fulfill the solemnities established in the law (Mancipatio).

b. Belongs to the Ius civile, so the ownership is obtained ex iure quiritum (Gaius II, 40-42). This means that it only applied for roman citizens who had capacity to acquire ownership (no foreigners, pupils, people under tutela or people who had suffered maxima or media capitis diminutio).

Requirements:

1. IUSTA CAUSA: OR IUSTUM TITULUM The possession of the object to be usucapted needed to be originated in a transaction recognized by the civil law, i.e.:

- Sale

- Donation,

- Solution (payment of an obligation),

- Dereliction or abandonment,

- Vindicative legacy

2. BONA FIDES: or Good Faith means that the object could not have entered the possession of the usucaptor by force (vis), theft (furtum), or deception.

3. CORPUS: Physical possession of the object.

4. ANIMUS: intention from the usucaptor of owning the thing –acting as an owner and legitimate possessor indicated this intention.

5. CONTINUOUS POSSESSION: Not interrupted for the whole period of possession in good faith. Interruption of this possession can be caused by:

- Initiation of a rei vindicatoria actionis.

- Recognition of someone else’s ownership: i.e. by paying rent.

6. TIME: 2 years for res soli (soil property/real estate), 1 year for other goods (mobile goods)

LONGI TEMPORIS PRAESCRIPTIO: started in the oriental provinces as a protection of the possessor of good faith. At the end of the classic period was recognized in the whole empire. It granted the possessor a similar protection as the praetorian exception of the usucapio. To obtain this protection, the possession had to be for 10 years if the original owner was in the same province or 20 years if the original owner was in another province. In the Justinian codification, these two modes were mixed, leaving the term usucapio for mobile things and praescriptio for real estate (res immobile).

LONGISSIMI TEMPORIS PRAESCRIPTIO: Only took into account the time, there was no need for iusta causa or bona fides. It was given by Constantine to all possessors. The time requirement was 30 years/ 40 years in Justinian times.

Occupatio:.

Where a person seized an object without owner (res nullius) he became the owner of that object. “res nullius fit primi occupantis”.

Characteristics:

a. One of the ius gentium modes of acquisition of ownership.

b. Res derelictae: absolute abandonment from the previous owner is mandatory (physical and intentional), does not apply to lost things or things thrown overboard from a ship in distress.

c. Wild animals: as long as there was physical control over them.

d. Precious Stones: in a state of nature/ do not confuse with treasures.

e. Property of the enemy: movable goods obtained in the war or belongings of the republic enemies found in roman soil. The land of the enemy belonged to the State

f. Islands arising in the sea.

Requirements:

- Res nullius

- Capable of ownership- res in commercium

- Corpus

- Animus: intention of assuming ownership in the thing- possession in the legal sense.

Specificatio:

Derivative mode of acquisition pertaining to the ius gentium . Refers to manmade final products (new things- nova species) obtained from raw materials that were used without authorization from the owner. e.g. wine obtained from grapes.

NOVA SPECIES -A nova species was created:

a. When the new thing had a new identity or name. This is if the new thing belongs in a different commercial category e.g. marble blocks and marble statues.

b. When the name and nature of the original item could not be recognised in the thing.

Ownership of the nova species: schools of thought

- Sabinians: The manufactured article should belong to the owner of the material substance.

- Proculians: The nova specie should belong to the creator of the article.

- Justinian Institutaes -Media sententiae: The owner of the raw materials or substance would own the nova species where the nova species could be reduced to its former component parts or raw materials without excessive difficulty or expense. If the nova species was irreducible, it was held to belong to the creator. Where the creator contributed any substance, then the maker owned it as he would have contributed both parts and labour. The issue of good faith (bona fides) was irrelevant to ownership, only to compensation.

Accessio:

One of the ius gentium modes of acquisition of ownership. Occurred when two or more objects (movable or immovable) belonging to different owners, were physically joined together by nature or by action of man in such a way that it was extremely difficult, if not impossible, to separate them. As a general rule, the owner of the more important/valuable (principal) object acquired ownership of the less important/valuable (accessory) object by way of incorporation (accessio) “ Res Accesoria Cedit Res Principalis”.

Principle: SUPERFICIES SOLO CEDIT: “what is in the surface yields to the soil”. Seeds, plants and buildings (aedificatio) attached to the soil become accessory of the soil and the owner of the plant/building is the owner of the plot/soil.

The person who lost his property by accessio had as a general rule a right to be indemnified for his loss by the person who acquired the new property. The exceptions were cases of mala fides.

Particular cases of ACCESIO that are not considered SPECIFICATIO despite their characteristics: Paper/ writing: the writing becomes accessory to the paper.Canvas, wood/ paint. Fabric/ embroidery-stitches: Threads and garments (textura).

ROMAN LAW OF PROPERTY. Second Set of Questions

Foundations of South African Law
Occupatio
Working Questions II

1. Julia goes hunting in the wildernis, on land which is unenclosed and which belongs the local Municipality. There she finds a herd of buck which she pursues. She shoots one young buck in the hind leg, but the buck chases away. Discuss who owns the buck in question.

2. Would your answer under 1 above differ if Julia had not shot the buck, but in fact caught it in a trap. Explain your answer.


3. The newspapers are currently full of stories about the Tiger of Delmas which escaped from the bakkie of Goosey Fernandes. The tiger is currently on the loose. Someone approaches you to enquire whether it would be possible for him to acquire ownership of the tiger by capturing him. Please advise.
4. Would your answer to 3 differ if it were a domestic cat? Explain.
5. I forget a book which I bought yesterday outside the Law Library. Who does it belong to? Why?


6. Would your answer under 5 differ if the book were still lying there after two weeks during which I had attended several lectures in the Law Faculty Buidling?



7. “Occupatio is a primitive concept.” Discuss.

Law of Property Handout I

FOUNDATIONS OF SOUTH AFRICAN LAW
Roman Law of Property
Summary Handout I

CLASSIFICATION OF THE THINGS

For the Romans a thing (res ) was any object from the exterior world that produced satisfaction to the subjects of law (roman citizen/latini/ peregrinii with ius commercii) or wasobject of a legal act. The word res is applicable to all the objects, regardless if they have or not entered into someone’s patrimony (Dig. 50,16,50). In the classic period, only corporal things were considered to be res. However, in the postclassical period, the evolution of legal thinking allowed jurists to consider incorporeal things as res, thus subjects of real rights and claims.

Things dedicated to the exclusive use of a person (owner or possessor in good faith – quo domine sunt/ quae bona fide possedentur) are called “goods” (Bona)

CLASSIC DIVISION OF THE THINGS

The chief division of res is into res divini juris, and res humani juris. Res divini juris are those which are appropriated to religious purposes, namely, res sacrae, sanctae, religiosae; and so long as they have this character, they cannot be the objects of property. Res humani juris are all other things that can be the objects of property; and they are either res publicae or res privatae. Res publicae belong to the state, and can only become private property by being deprived of this public character [Agrariae Leges]. Res universitatis are the property of a universitas, and are not the property of any individual.

The phrase res nullius refers to a thing which has no owner, a thing which has been abandoned by its owner is as much res nullius as if it had never belonged to anyone. The first possessor of such a thing becomes the owner if that thing is not a res divini, “res nullius fit primi occupantis”. Res communes are those which cannot be the objects of property, and therefore are res nullius, but they can be enjoyed by everyone, as the sea.

Res corporales are defined to be those that can be touched "quae tangi possunt;" incorporales are those that can’t be touched and constitute a right "quae tangi non possunt, sed in jure consistunt," as Hereditas, Ususfructus, Obligationes; and they are consequently incapable of tradition, or deliver. An incorporeal thing is merely a right, and so it is explained in the Institutiones (ii. tit. 2, ed. Schrader).


Corporeal things are divided into immobiles, or solum et res soli, and mobiles. The ground (solum), and that which is so attached to the ground as to be inseparable from it without being destroyed, as a building for instance, are res immobiles. Mobiles res are all such as can be removed from one place to another without the destruction of their character.

The class of res mobiles "quae pondere, numero, mensura constant," is also called fungible (things that can be counted, weighed or numbered) are such things as wine, oil, corn, silver, gold, which are of such a nature that any the same number, weight, or measure, may be considered the same thing. There is another class of res, consisting of those that are consumable "quae usu consumuntur, minuuntur," and those that are not consumable. The term singulae res comprehends either one thing or several things, separately considered as one. Such things are either simple, as an animal, a stone; or compounded of parts, as a carriage, or a ship. Any number of things, not mechanically connected, may in a legal sense be viewed as one, or as a universitas (Dig. 41 tit. 3 s30; 6 tit. 1 s23 § 5).

Some things as subordinate parts go with that which forms the principal thing (Res principalis/ res accessoriae) (Dig. 18 tit. 1 s49). If a thing, as a house or a ship, was purchased, the buyer got everything that was a part of the house or ship (Dig. 21 tit. 2 s44).

RES MANCIPI

The division of things into res mancipi and res nec mancipi, was one of ancient origin; and it continued to a late period in the empire. Res mancipi p422 (Ulp. Frag. xix) are praedia in Italico solo (plots in italic soil), both rustic and urban; also jura rusticorum praediorum or servitutes, as via, iter, aquaeductus (servitudes, acueducts, streets) ; also slaves, and four-footed animals, as oxen, horses, etc., quae collo dorsove domantur. Other things were nec mancipi.

IUS IN REM

 Jus in rem refers to real rights. A real right is a type of legal permission in a tangible or intangible property. It can be contrasted with personal rights. In other words, Ius in rem can be associated with Dominia whilst Iura in personam can be associated with Obligationem.

- Ius in rem: claims related to things (res) to assert ownership or any real right (usucapio, servitudinem,possessio). These claims are enforceable against all members of the public and there is a presupposed right that must exist before enforcing in rem actionis is possible.


- Obligationem: enforceable against someone in particular. Their content is always an action from someone in particular, more specifically, to do something, to give something or not to do something (Dig. 44.7.3)

Dominia in the extensive sense of the word includes ius utendi , et abutendi re sua, quatenus iuris ratio patitur, 'the right to use, and abuse (dispose of) a thing, within the limits of the law' (Justinian, Code 4, 35, 21).

ROMAN LAW OF PROPERTY -First Set of Questions

FOUNDATIONS OF SOUTH AFRICAN LAW
Law of Property
Ownership, possession, categories of res
Working Questions I
1. Sextus goes for a walk in the countryside. It’s a hot and sunny day, and he wishes he had decided to wear a hat. As he passes a meadow, he sees an old weather-beaten hat lying in the grass. He picks it up and puts it on his head.
(a) After picking up the hat, is Sextus in possession of the hat? Explain.


(b) Does Sextus become the owner of the hat?

2. It’s the year 400AD. Quintus wishes to buy a very impressive house in Rome, and he approaches the Catholic bishop who lives nearby to enquire whether the small unused church in the neighbourhood is possibly up for sale.
(a) Write a short dialogue to illustrate what you think the conversation between the bishop and Quintus might have been.


(b) How would the facts of this little tale have differed if the date was 200BC?

3. It’s a windy day and bits of debris get blown into Lavinia’s back yard. Among them is a beautiful feather which appears to originate from the plumage of a wild peacock which roams in the forest nearby.
(a) Does Lavinia become the possessor of the feather lying in her garden?


(b) Does she become the owner of it?


(c) Would your answers to (a) and (b) differ if she had picked the feather up and put it in a vase in her house?

4. Desideria is a young entrepreneur and wishes to make what in common parlance is called a quick buck. She chances upon a deserted beach which she thinks would be very popular with the young party crowd. She wants to set up a bar and an outdoor disco there.

(a) Write a short legal opinion advising Desideria of the chances of her plan succeeding.

5. Mucius is a scientist and wants to experiment on the atmosphere in order to find a solution for global warming. He wishes to bottle a quantity of air.

(a) Advise Mucius on the legal position.


6. The year is 50BC. Cassius has two slaves but wishes to sell one of them since his household requires less assistance than before. He is in a hurry to get rid of the slave and to pocket the proceeds. He decides to sell the slave in question to his good friend Lucius. Since they are such good friends, they decide they will not go through the tiresome procedures required for mancipatio and that they will rather just agree informally between themselves on the sale. Yet, a week after the sale, they have an argument, and Cassius decides he will show Lucius who’s boss. When he sees the slave in question pass his front door, he invites him into his house, and then refuses to release him to Lucius when the latter comes calling looking for his slave.
(a) Analyse the legal position, and the respective rights of the two parties. Set your analysis out in ten simple sentences.


(b) Would your answer differ if the year were 550AD. Why?


7. Lucretia has a beautiful necklace which slips off when she goes to the Circus Maximus to watch the races.
(a) Advise Lucretia.