Course of action I
ACTIO REI VINDICATORIA
ACTIO IN REM:
The aim of a real action was to establish the strength of the parties' claims to legal rights over movable or immovable property (res). Once this had been established, a real action could also be employed to reclaim it from other parties. A claim of ownership of movable or immovable property was also instituted using a real action, but in these circumstances the claim was known as a vindicatio
The purpose of a rei vindicatio was to enforce the right of ownership of a thing. Rei vindicatio was derived from the ius civile, therefore was only available to Roman citizens. The thing in dispute needs to be specified. A plaintiff could not have won a case without specifying the thing in question.
Kinds of Things:
- Corpus unitum
- Corpus coniunctum
- Corpus ex distantibus was not a single thing, but a bundle of independent things, such as a herd of cattle. Cattle were so important in Roman society that Roman jurists developed the regulation on cattle on a full scale. Corpus ex distantibus was the most disputed of the three.
The Actio Publiciana is granted in lieu of a rei vindicatio
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:
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).
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 tutelae or people who had suffered maxima or media capitis diminutio).
Requirements:
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
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.
CORPUS: Physical possession of the object.
ANIMUS: intention from the usucaptor of owning the thing –acting as an owner and legitimate possessor indicated this intention.
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.
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 40years/ 30 years in Justinian times.
Course of Action II
SERVITUDES
Definition
The object of Servitudes is to enable persons other than the owner of a thing to share in thebenefits derivable from the use of that thing, while preserving the interests of the owner asfully as possible. The ownership is said to ' serve ' (' servit '), i. e. it is cur- tailed, it is notabsolutely free, though, at the same time, its economic effect is not done away with.On the contrary, as against the servitude, ownership is the dominating right.
Characteristics: Servitudes only confer on the person entitled certain specific and clearlydefined rights of user ; in the second place, they are inalienable and non- transmissible,being annexed to a definite subject whose destruction entails the destruction of the right.Servitudes may be defined as real rights of user in a res aliena, limited in their nature andannexed to a definite given subject. In the case of praedial servitudes, the owner of the land,for the time being, is the person entitled to the servitude.Praedial Servitudes.
Praedial servitudes are either ' servitutes praediorum rusticormn,' i. e. servitudes which usuallyoccur in favour of a plot of agricultural land, or ' servitutes praediorum urbanorum,' i. e.servitudes which usually occur in favour of buildings.
Rural Servitudes.
The most important rural servitudes are : the several rights of way (servitus itineris, actus, viae);the right of conducting water over another's land (servitus aquaeductus) ; the right of drawingwater onanother's land (servitus aquae hauriendae).
Modes of Acquisition:
- Mancipatio- In Iure cessio- Legacy- Usucapio/ Longi temporis praescriptio after lex scribonia- Adjudicatio- Pacts and Stipulations- Traditio (postclassical period)
Extinction:
Confusio: nemini res sua servit
Non-exercise of the right (2 yrs classic/ 10yrs postclassical inter presents20 inter absents)
by bequest of the exemption from the servitude
ACTIO CONFESSORIA
ACTIO IN REM
Servitudes might also be the subjects of Actiones in rem (Dig. 7 6; 8 5). An Actio Confessoria or Vindicatio Servitutis had for its object the establishing the right to a Servitus, and it could only be brought by the owner of the dominant land, when it was due to land. The object of the action was the establishment of the right, damages, and security against future disturbance in the exercise of the right; and the action might be not only against the owner of the servant thing, but against any person who impeded the exercise of the right. The plaintiff had of course to prove his title to the Servitude
The Actio Negatoria or Vindicatio libertatis, might be brought by the owner of the property against any person who claimed a Servitude on it. The object was to establish the freedom of the property from the servitus, for damages, and for security to the owner against future disturbance in the exercise of his ownership. The plaintiff had of course to prove his ownership and the defendant to prove his title to the Servitude (Gaius, IV.3; Dig. 8 tit. 5).
Course of Action III
OCCUPATIO
Mode of acquisition where a person seized an object without owner (res nullius)and became the owner of that object.
"res nullius fit primi occupantis".
"res nullius fit primi occupantis".
Characteristics:
One of the ius gentium modes of acquisition of ownership.
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.
Wild animals: as long as there was physical control over them: this is the point in dispute
Precious Stones: in a state of nature/ do not confuse with treasures.
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
Islands arising in the sea.
Requirements:
Res nullius
Capable of ownership- res in commercium
Corpus: physical control
Animus: intention of assuming ownership in the thing- possession in the legal sense.
