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).