Gaius Institutes

GAIUS’ INSTITUTES


BOOK II - OF SINGLE AND UNIVERSAL THINGS

DIVISION OF THINGS

§ 1. In the preceding book the law of persons was expounded; now let us proceed to the law of things, which are either subject to private dominion or not subject to private dominion.

§ 2. The leading division of things is into two classes: things subjects of divine, and things subjects of human right.

§ 3. Subjects of divine right are things sacred and things religious.

§ 4. Sacred things are those consecrated to the gods above; religious, those devoted to the gods below.

§ 5. Sacred things can only become so with the authority of the people of Rome, by consecration in pursuance of a law or a decree of the senate.

§ 6. A religious thing becomes so by private will, when an individual buries a dead body in his own ground, provided the burial is his proper business.

§ 7. On provincial soil, according to most authorities, ground does not become religious as the dominion belongs to the people of Rome or the Emperor, and individuals only have possession or usufruct, but such places, though not properly religious, are to be regarded as quasi-religious.

§ 7 a. Just as provincial soil, in default of the authorization of the people of Rome, is rendered by consecration not sacred, but quasisacred.

§ 8. Sanctioned places are to a certain extent under divine dominion, such as city gates and city walls.

§ 9. Things subject to divine dominion are exempt from private dominion; things subject to human dominion are generally subject to private dominion, but may be otherwise: for things belonging to an inheritance before any one has become heir have no actual owner.

§ 10. Things subject to human dominion are either public or private.

§ 11. Things public belong to no individual, but to a society or corporation; things private are subject to individual dominion.

OF INCORPORAL THINGS.

§ 12. Again, things are either corporeal or incorporeal.

§ 13. Things corporeal are tan gible, as land, a slave, clothing, gold, silver, and innumerable others.

§ 14. Things incorporeal are intangible; such as those which have an existence simply in law as inheritance, usufruct, obligation, however contracted. For though an inheritance comprises things corporeal, and the fruits of land enjoyed by a usufructuary are corporeal, and obligations generally bind us to make over the conveyance of something corporeal: land, slaves, money; yet the right of succession, the right of usufruct, and the right of obligation are incorporeal. So are the rights attached to property in houses and land. The following are rights attached to property in houses; the right of raising a building and thereby obstructing the lights of a neighbouring building; the right of prohibiting a building being raised, so that one’s lights may not be interfered with; the right of letting rain-water fall in a body or in drops on a neighbour’s roof or area; the right of having a sewer through a neighbour’s area, or a window in a neighbour’s wall (cf. Epit. 2, 1, 3). The following are rights attached to property in land: iter, a right of way on foot or horseback; actus, a right of way for ordinary carriages; via, a right of paved way for heavy-laden wagons; pecoris ad aquam appulsus, a right of watering cattle; aquae ductus, a right of conveying water through the tenement of another.

CIVIL ACQUISITION OF CORPORAL THINGS

§ 14 a. Things are further divided into mancipable and not mancipable; mancipable are land and houses in Italy; tame animals employed for draught and carriage, as oxen, horses, mules, and asses; rustic servitudes over Italian soil; but urban servitudes are not mancipable.

§ 15. Stipendiary and tributary estates are also not mancipable. According to my school animals which are generally tamed are mancipable as soon as they are born; according to Nerva and Proculus and their followers, such animals are not mancipable until tamed, or if too wild to be tamed, until they attain the age at which other individuals of the species are tamed.

§ 16. Things not mancipable include wild beasts, as bears, lions; and semi-wild beasts, as elephants and camels, notwithstanding that these animals are sometimes broken in for draught or carriage; for their name was not even known at the time when the distinction between res mancipi and nec mancipi was established.

§ 17. Also things incorporeal, except rustic servitudes on Italian soil; for it is clear that these are mancipable objects, although belonging to the class of incorporeal things.

§ 18. There is an important difference between things mancipable and things not mancipable.

§ 19. Complete ownership in things not mancipable is transferred by merely informal delivery of possession (tradition), if they are corporeal and capable of delivery.

§ 20. Thus when possession of clothes or gold or silver is delivered on account of a sale or gift or any other cause, the property passes at once, if the person who conveys is owner of them.

§ 21. Similarly transferable are estates in provincial lands, whether stipendiary or tributary; stipendiary being lands in provinces subject to the dominion of the people of Rome; tributary, lands in the provinces subject to the dominion of the Emperor.

§ 22. Mancipable things, on the contrary, are such as are conveyed by mancipation, whence their name; but surrender before a magistrate has exactly the same effect in this respect as mancipation.

§ 24. Conveyance by surrender before a magistrate (in jure cessio) is in the following form: in the presence of some magistrate of the Roman people, such as a praetor, the surrenderee grasping the object says: I say this slave is my property by title Quiritary. Then the praetor interrogates the surrenderor whether he makes a counter-vindication, and upon his disclaimer or silence awards the thing to the vindicant. This proceeding is called a statute-process; it can even take place in a province before the president.

§ 25. Generally, however, and almost always the method of mancipation is preferred; for why should a result that can be accomplished in private with the assistance of our friends be prosecuted with greater trouble before the praetor or president of the province?

§ 26. If neither mancipation nor surrender before the magistrate is employed in the conveyance of a mancipable thing . . . .

§§ 14 a-23. Mancipable things—things taken by the hand and so alienable—were at first, probably, the more important accessories of a farm, that is, slaves and beasts of burden—oxen, horses, mules and asses (1 § 120), land itself in Italy and rural servitudes attaching to such land being subsequently made mancipable.

OTHER PEOPLE ENTITLED TO TRANSFER PROPERTY (OTHER THAN THE OWNER) QVIBVS ALIENARE LICEAT VEL NON. (see here some modes of acquisition)

§ 62. It sometimes occurs that an owner has not a power of alienation, and that a person who is not owner has a power of alienation.

§ 63. The alienation of dower land by the husband, without the consent of the wife, is prohibited by the lex Julia, although the husband has become owner of the land by its mancipation to him as dower, or by its surrender to him before a magistrate, or by his usucapion of it. Whether this disability is confined to Italian soil, or extends to the provinces, authorities differ.

§ 64. Contrariwise, an agnate, as a lunatic’s curator, is empowered to aliene the lunatic’s property by the law of the Twelve Tables; and so is a procurator that of his principal (when invested by his principal with free power of administration: Inst. 2, 1, 43). Again, a pledgee, in pursuance of a pact authorizing him to sell, may aliene the pledge, though he is not owner of the thing; this, however, may be said to rest on the assent of the pledgor previously given in the agreement which empowered the pledgee to sell in default of payment..

§§ 66-69. Occupation gives property in a thing which previously has no owner. Quod enim ante nullius est, id naturali ratione occupanti conceditur, Inst. 2, 1. 12. If a thing had already an owner, it is only after dereliction by him that it can be appropriated by occupation. Dereliction, or renunciation of ownership, requires both the intention to abandon it and an external action. Thus the casting overboard of articles in a tempest to lighten a ship is not dereliction, as there is no intention of abandoning the property in the event of salvage, Inst. 2, 1, 48. Nor does the mere intention of abandonment constitute dereliction of ownership without a throwing away or removal or some other external act; and herein dereliction of ownership differs from dereliction of possession, which does not require this second element. Differentia inter dominium et possessionem haec est, quod dominium nihilo minus ejus manet qui dominus esse non vult, possessio autem recedit ut quisque constituit nolle possidere, Dig. 41, 2, 17. ‘There is this difference between ownership and possession, that ownership continues after the will to own has ceased, whereas possession ceases with the cessation of the will to possess.’

§ 68. Among wild animals (ferae naturae) a distinction is to be drawn. In those of them that are half tamed (mansuefactae), among which are mentioned deer, peacocks, pigeons, bees, property is not limited by strict detention, as in other wild animals, but by animus revertendi. A migrating swarm (examen) of bees, accordingly, would only continue to belong to the owner of the hive as long as it continues in his sight and is easy to recapture, as it has no intention of returning. In tame animals, e. g. dogs or geese, the rights of the owner are not extinguished by their straying without an intention to return. Inst. 2, 1, 12-16.

§§ 76-79. The intimate conjunction of two things, so that they are no longer separable and restorable to their former condition, may produce a transmutation of ownership. A separable junction, as when two flocks of sheep are intermingled, or when a stone is set in a ring, or when two metals are soldered together (plumbatura), or when the grain of one man is mixed with that of another, apart from an agreement to share in common, produces no change of ownership. In one case, however, namely, when material has been used in building a house on another man’s land, although the property of the owner of the material continues, it is in a dormant state since he cannot, so long as it is fixed to the land, vindicate it, ‘quia superficies solo cedit,’ § 73. The Twelve Tables, however, allowed him the actio de tigno juncto to recover double the value.

WHETHER WARDS CAN ALIENE. (see here other modes of acquisition + iura in re aliena)

§ 80. We must next observe, that neither a woman nor a ward (pupillus) can aliene a mancipable thing without their guardian’s sanction: nor can a ward even aliene a non-mancipable thing without such sanction, though a woman can.

§ 81. Thus a woman lending money without the guardian’s sanction passes the property therein to the borrower, money being a non-mancipable thing, and so imposes a contractual obligation on the borrower.

§ 82. But a ward lending money without his guardian’s sanction does not pass the property, and so does not impose a contractual obligation on the borrower, he can therefore recover back the money, if it exists, by vindication, that is, by claiming it as quiritary owner; whereas a woman can only bring a personal action of debt. Whether a ward can maintain an action against the borrower in case the money has been spent by him, is a subject of controversy, for a ward can acquire a right of action against a person without the sanction of his guardian.

§ 83. On the contrary, both mancipable and non-mancipable things can be conveyed to women and to wards without their guardian’s sanction, because they do not require his sanction to better their position.

§ 84. Accordingly, a debtor who pays money to a ward passes the property therein to the ward, but is not discharged of his obligation, because a ward cannot release a debtor from any liability without his guardian’s sanction, as without such sanction he cannot part with any right: if, however, he is profiting by the money, and yet demands further payment, he may be barred by the plea of fraud.

§ 85. A woman may be lawfully paid without her guardian’s sanction, and the payer is discharged of liability, because, as we have just mentioned, a woman does not need her guardian’s sanction for the alienation of a non-mancipable thing, provided always that she receives actual payment: for if she is not actually paid, she cannot formally release her debtor by acceptilation (3 § 169) unless with her guardian’s sanction.

§ 80, cf. 1, §§ 142-154, comm., 189-193.

§§ 81, 82. For mutuum, see 3 § 90. If the money delivered by a ward could be traced it was recoverable from any one by real action (vindicatio): if it had been consumed in bona fides a personal action, condictio certi, would probably lie against the borrower to recover an equivalent sum: if it had been consumed in mala fides a personal action, ad exhibendum, would lie to recover an equivalent sum and damages, Inst. 2, 8, 2.

§ 85. The pupilage of women after attaining the age of twelve, i. e. the age of puberty, had become obsolete before the time of Justinian, and with it their incapacities of alienation.

§ 86. We may acquire property not only by our own acts but also by the acts of persons in our power, hand, or mancipium; further, by slaves in whom we have a usufruct; further, by freemen or another’s slave of whom we are bona fide possessors: let us now examine these cases in detail.

§ 87. The rights of property which children under power or slaves acquire by mancipation or tradition, or claims they acquire by stipulation, or by any other title, are acquired for their superior; for a person subject to power is incapable of holding property, accordingly if instituted heir he must have the command of his superior to be capable of accepting the inheritance, and if he has the command of the superior and accepts the inheritance, it is acquired for the superior just as if the latter had himself been instituted heir: and the rule that it is the superior who acquires applies equally in the case of a legacy.

§ 88. But it is to be noticed that when one man is bonitary owner of a slave and another quiritary owner, whatever the mode of acquisition, it enures exclusively to the bonitary owner.

§ 89. Not only ownership is acquired for the superior but also possession, for the possession of the inferior is deemed to be the possession of the superior, and thus the former is to the latter an instrument of acquiring by usucapion.

§ 90. Persons in the hand or mancipation of a superior acquire ownership for him by all modes of acquisition just as children or slaves in his power; whether they acquire possession for him is a controversy, as they are not themselves in his possession.

§ 91. Respecting slaves in whom a person has only a usufruct, the rule is, that what they acquire by means of the property of the usufructuary or by their own labour is acquired for the usufructuary; but what they acquire by any other means belongs to their proprietor. Accordingly, if such a slave is instituted heir or made legatee, the inheritance or legacy is acquired, not for the usufructuary, but for the owner.

§ 92. The possessor in good faith of a freeman or a slave belonging to another is held to have the same rights as a usufructuary; what they acquire on any other account than the two we mentioned, belonging in the one case to the freeman himself in the other to the rightful owner.

§ 93. But after a possessor in good faith has acquired the ownership of a slave by usucapion, since he has thus become owner of him, all acquisitions by the slave enure to his benefit. A usufructuary cannot acquire a slave by usucapion, for, in the first place, he has not possession, but only a right of usufruct; and in the second place, he knows that the slave belongs to some one else.

§ 94. It is a question whether a slave can be an instrument of possession and usucapion for a usufructuary, the slave not being himself in his possession. A slave, undoubtedly, can be the instrument of possession and usucapion for a bona fide possessor. Both cases are subject to the limitation made above as to things acquired by the slave by means of the usufructuary’s property or by his own labour.

§ 95. It appears that freemen not subject to my power nor in my bona fide possession, and slaves of other people of whom I am neither usufructuary nor lawful possessor, cannot under any circumstances be instruments of acquiring for me, and this is the import of the dictum that a stranger to the family cannot be an instrument in the acquisition of anything; only in respect of possession there is a controversy as to whether it cannot be acquired through a stranger.

§ 96. Finally, it is to be observed that persons under power, in hand, or in mancipium, cannot acquire by surrender before a magistrate, for, as nothing can belong to such persons, it follows that they cannot vindicate anything as their own before a magistrate.

§ 87. Manus and mancipium had ceased to exist before the time of Justinian, and patria potestas was much reduced. The gradual steps by which filiusfamilias acquired an independent proprietary position have been already described, 1 § 55, comm. The reduction of patria potestas, and the abolition of the dependent law of Agnation, may be almost regarded (so fundamental were these institutions in jus civile) as the abrogation of the jus civile, and the substitution in its stead of what the Romans called jus gentium.

§ 88. The power of acquiring by the acts of a slave and the power of manumission, so as to make a slave Latinus, accompany Bonitary, not Quiritary, ownership, where these are separated, 1 §§ 35, 54, 3 § 166.

§ 95. All Dispositions or modes of conferring either rights against one (jus in personam), or rights against the world (jus in rem), are divisible, as we have before mentioned, into two parcels; an essential portion, some mental or internal act, the Intention of the parties; and an evidentiary portion, the Execution of this intention, its incorporation in some overt act. Can these elements of title be contributed by different persons? Can the Intention of disposing, that is, of acquiring or aliening, reside in one, and can its Execution, its external manifestation, be delegated to a representative?

§ 96. We might have expected that, as those subject to potestas can acquire for their superiors by Mancipatio, § 87, so they could also acquire by In jure cessio, especially as the same form of words—Hunc ego hominem ex jure Quiritium meum esse aio—was used in Mancipatio, 1 § 119, and in Vindicatio, 4 § 16. It seems, however, that in Mancipatio the formula could be changed to Hanc rem ex jure Quiritium Lucii Titii domini mei esse aio, 3 § 167; and that a similar modification was not admissible in in jure cessio. It follows that an inferior (filius, qui in mancipio est, or servus) could acquire for his superior rural servitudes, but not urban or personal servitudes, §§ 29, 30, these being only created by in jure cessio; not, that is to say, as res singulae: for as parts of a rerum universitas these and all other rights could be acquired for a superior by an inferior by making aditio of an hereditas with the sanction of the superior, § 188; and even as res singulae these rights could be acquired for a superior by an inferior by title of legatum; that is, if they are conferred by a testator on the inferior as legatarius, Vat. frag. 51.



BOOK IV – ACTIONS AND LEGAL REMEDIES

COMMENTARIVS QVARTVS

§ 1. We have now to treat of Actions, which according to the better view fall into two classes, being either Real or Personal: for those who count four classes, including the forms of sponsio, commit the error of co-ordinating sub-classes with classes.

§ 2. A Personal action is an action which seeks to enforce an obligation imposed on the defendant by his contract or delict, that is to say, is an action by which one claims in the intentio of the formula that he is bound to convey some property to one, or to perform for one some service, or to make some other kind of performance.

§ 3. A Real action is an action by which one claims as one’s own in the intentio some corporeal thing or some particular right in the thing, as a right of use or usufruct of a thing belonging to a neighbour, or a right of horseway or carriage-way through his land, or of fetching water from a source in his land, or of raising one’s house above a certain height, or of having the prospect from one’s windows unobstructed; or when the opposite party (that is the owner) brings the negative action asserting that there is no such right in the thing.

§ 4. Real and Personal actions being thus distinguished, it is clear that I cannot demand my own property from another in the following form: ‘If it be proved that the defendant is bound to convey such property to me.’ For what is already my own cannot be conveyed to me, since conveyance to me makes a thing mine, and what is already mine cannot be made more mine than it is. Yet, to show the law’s detestation of thieves, in order to make them liable to a greater number of actions, it is received doctrine that besides the penalty of twice the value of the thing stolen awarded against the thief not caught in the act, and the penalty of four times the value against the thief caught in the act, damages for the thing itself may be recovered by a personal action in which the contention is thus worded: ‘If it be proved that the defendant ought to convey the thing in question,’ although they are also liable to be sued by an action with the intentio thus formulated: ‘If it be proved that the plaintiff is owner of the thing in question.’

§ 5. A Real action is called vindicatio; a Personal action, whereby we contend that some property should be conveyed to us or some service performed for us, is called condictio.

§ 6. We sue sometimes only to obtain property, sometimes only for a penalty, sometimes both for property and for a penalty.

§ 7. We sue, for instance, only for property in actions founded on contract.

§ 8. We sue, for instance, only for a penalty in the action of Theft and of Outrage, and, according to some, of Rapine; for we may obtain restitution on account of the thing itself either by vindicatio or condictio.

§ 9. We sue, for instance, both for property and for a penalty in those actions where the defendant who denies his liability is condemned to pay double, as in the actions to recover a judgment debt, to recover money paid by a sponsor for his principal, to recover damages for injury to property under the lex Aquilia, and to recover legacies of a definite amount bequeathed in the form of legacy per damnationem.