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).