'real' and 'personal' rights
• Titius owns the Cornelian estate. What is the content of
his right on it?
• Titius cannot pay back the loan of 1000 he received from
Caius. Instead, he promises to Caius the Cornelian
estate. What is the content of Caius' right?
• 'real' right: aggregate of faculties over an object /
'personal' right: the faculty of the creditor to demand
satisfaction from the debtor
• 'real' rights fall on a thing (res) / 'personal' rights fall on
the person of the debtor
passive legitimation
• Titius has promised to Caius the Cornelian estate.
Breaking the promise, he transfers the ownership on the
estate to his brother Sempronius. Who can Caius sue?
• Fulfilling his promise, Titius transfers the ownership on
the estate to Caius, against the will of his brother
Sempronius, who considers the estate to belong to him.
Sempronius then uses violence to take possession of the
estate. Who can Caius sue? What if the estate is
occupied by Titius himself?
• 'real' rights can be claimed against anyone who breaks
them (erga omnes) / 'personal' rights, only against the
debtor (inter partes)
the action
• action = claim in court
• A has action against B = A is entitled to a claim
against B
• Not only he can lay a claim -anyone can, even
without reason-, but he is entitled to it.
• 'real' action: the one of the holder of a 'real' right
against whomever breaks it.
• 'personal' action: the one of the creditor against
the debtor.
'real' and 'personal' action
• Titius owns the Cornelian estate; Gaius occupies it
unlawfully. Which action does Titius have?
• Caius, owner of the Cornelian estate, promises it to
Titius. Which action does Titius have?
• Just a personal action, to claim the fulfillment of the
promise. Not a real one, because the estate is not his
yet.
• In real actions, the plaintiff claims what is his; in personal
actions, he claims as a creditor what is owed to him by
his debtor.
• The difference does not reside in 'what' is claimed (the
Cornelian estate in both cases) but in 'how', i.e., in the
legal basis of the claim.
The formula
•
•
Let Titius be judge. If it results that
the Cornelian estate belongs to
the plaintiff according to the law of
the Roman citizens, and the
matter is not restored following
your instructions, let the defendant
be condemned to pay to the
plaintiff so much money as this
matter will represent; otherwise,
let him be absolved.
Let Titius be judge. If it results that
according to the civil law the
defendant owes the Cornelian
estate to the plaintiff, let the
defendant be condemned to pay
to the plaintiff so much money as
this matter represents; otherwise,
let him be absolved.
•
•
•
•
The underlined part
Intentio in personam mentiones
both parties, intentio in rem only
the plaintiff. Why? Consequences
regarding passive legitimation.
a) actiones in personam are
based upon a relation between
creditor and debtor; actiones in
rem upon the position of a person
regarding a thing.
b) the formula in rem can thus be
used against anyone breaking the
right; the formula in personam
only against the debtor.
commerciability
• Marcian. 3 inst.
D.1,8,2pr.:
Certain things
are common to
all by natural
law; some
belong to the
entire
community,
some to no
one, and the
greater number
to individuals
Res extra
commercium
Res
communes
omnium
[Res divini
iuris]
Res publicae
Res in commercio
In patrimonio
Extra patrimonium
Res nullius
Res sine domino
Res mancipi
• Res mancipi can only be acquired by means of
a ritual in front of five witnesses (mancipatio) or
the magistrate (in iure cessio).
• Ulp. 19,1: All property is either mancipable, or
not mancipable. Mancipable property is land
situated in Italy, both rustic, such as a field, and
urban, such as a house; likewise all rights
attaching to rustic estates, as the right of way,
to pass, or drive; the right to conduct water,
and also slaves, and quadrupeds broken to
yoke or saddle, as for instance, oxen, mules,
horses, and asses. All other property is not
mancipable, for elephants and camels,
although they are trained to haul loads and
carry burdens, do not come under this
category, as they are classed among wild
beasts. (trans. Scott)
• res nec mancipi are acquired by mere delivery,
without any formality.
• What may the reason for this difference be?
Paul. 28 ed. D. 12,1,2pr.-1
• In the case of the loan called mutuum we do not expect to get
back the very thing given (then it would be commodatum or
depositum) but rather something of the same kind. If ever we
expect back something of another kind, as for instance, wine
for corn, the transaction will not be a mutuum. (1) This kind of
lending happens in relation to those things which are dealt in
by weight, number or measure. For the giving of those things
makes us generic creditors, since the very way in which they
are used requires generic rather than specific repayment (in
genere suo functionem recipiunt per solutionem). But in the
case of other things, we cannot become generic creditors, for
the reason that without the creditor's consent one thing
cannot be given in discharge for another.
'fungibles'
• "things which are dealt in by weight, number or measure".
Examples?
• cannot specific things be also weighed, numbered or measured?
• what is the relevance of the distinction in loans?
• relevant also in the way of claiming back something.
• Reivindicatio: If it results that the Cornelian estate belongs to the
plaintiff according to the law of the Roman citizens, The object must
be identified in the intentio.
• A thief enters Titius' home and steals ten thousand sestertii:
• a) If it results that the ten thousand sestertii belong to Titius'
according to the law of the Roman citizens...
• b) If it results that according to the civil law the defendant ought to
give ten thousand sestertii to Titius....
• Reivindicatio makes no sense: one may claim specific coins as
owner; but money, only as creditor.
'perishables'
•
•
•
•
•
•
examples of fungible things
wheat, wine... what are they for?
Physical consumption
Money?
Legal consumption
Perishables / Non perishables: tolerate
use salva rerum substantia. Examples?
the content of ownership
• Lex Antonia de Termessibus (CIL I, 204), plebiscite, 71 BC.,
constituting the city of Termessos as a comunity of leiberei amicei
socieique populi Romani
• (5) Whatever possessions, public or private, except leased lands
and buildings, belong or belonged to the Termessians before the
First Mithradatic War, and whatever of these possessions they
previously had, possessed, used, or enjoyed, which they themselves
by their own free will have not alienated from themselves, all these
shall belong to the Termessians in such manner as these belong or
belonged ; and likewise it shall be lawful for them to own, to
possess, to use, and to enjoy all these.
• (5) Quae Thermensorum maiorum Pisidarum publica preivatave
praeter locata agros aedificia sunt fueruntve ante bellum Mitridatis,
quod preimum factum est, quodque earum rerum ii antea habuerunt
possederunt usi fructive sunt, quod eius ipsi sua voluntate ab se non
abalienarunt, ea omnia Termensium maiorum Pisidarum, uti sunt
fuerunt, ita sunto, itemque iis ea omnia habere possidere uti fruique
liceto. …
• HABERE POSSIDERE UTI FRUI
Habere
• Habere = power of disposal
• Acts of disposing: 1.- physical consumption; 2.- legal consumption;
3.- physical alteration; 4.- legal alteration
• Examples?
• 1.- an animal is sacrified for its meat
• 2.- a slave is manumitted
• Ownership is tranferred
• An amount of money is used
• 3.- A plot of land is built upon
• A wineyard is transformed into a mine
• 4.- The right to pass through our plot of land is bestowed by us on a
neighboring plot.
• We cede to a relative the right to use and exploit the fruits of our plot
of land.
• Quid iuris, if we give the plot for hire?
• The lessee does not acquire any right ON the leased object, only a
'personal' right against the lessor, whose duty is to allow him to use
the object. The legal situation of the thing does not change: no
disposition.
Possidere
• Ownership and possession: differences
• Who has the right to possession?
• Possidere = the faculty of the owner to
have the thing under his control
Uti
• Uti = faculty to use
• Acts of use = take a benefit directly from
the thing salva rei substantia
• Salva rei substantia = without disposition
• Examples?
• Inmovable: to inhabit it
Frui
• Frui = faculty to exploit the fruits of the thing
salva rei substantia
• Fruits: 1.- natural; 2.- civil
• Examples?
• (1) The harvest; the offspring of the animals;
milk, eggs, wool...; the product of a mine (2) The
rent of a lease.
• Not fruits: a) the offspring of slaves; b) the rests
after destroying something (v.gr. the meat of an
animal); c) the interests of money given in loan
exploitative
acts
disposal
physical
consumption
legal
consumption
physical
alteration
Salva rerum
substantia
directly on
the thing
on the
products of
the thing
legal
alteration
additional faculties
•
•
•
•
5.- Claim the object. No right without action
6.- Prevent any interference of strangers
Some example in which 6 is not legitimate any more?
Ex. 1: my wineyard is charged by a right of way in favour of the
neighbouring
• Ex .2: my house is charged by a usufruct in favour of my mother
• In both cases, my faculties are limited: in 1, nr. 6; in 2, all save the
disposal
• Where do these limitations come from? Who is entitled to impose
them?
Servus venditus et traditus
• January 1st: Titius sells a slave, Stichus, to
Caius. The price is to be paid in one
month and in that very moment Titius shall
allow the slave to leave with Caius.
• February 1st: Having received the price,
Ttius allows Caius take the slave with him.
• Caius is dominus ex iure Quiritium (civil
owner): a) on January 1st; b) on February
1st.
• If Caius is not dominus, who is?
Titius’ claim
• If Titius is still owner of the slave, he has reivindicatio
against any possessor.
• Quid iuris, if he uses it against Caius?
• Let X be judge. If it results that Stichus belongs to Titius
according to the law of the Roman citizens, and the
matter is not restored following your instructions, let
Caius be condemned to pay to Titius so much money as
this matter will represent; otherwise, let him be absolved.
• a) we condemn Caius to pay Titius the price of Stichus if
he doesn’t leave it back to him
• b) we absolve Caius
• Can the praetor avoid this result?
Exceptio rei venditae et traditae
• Let X be judge. If it results that Stichus
belongs to Titius according to the law of
the roman citizens, and the matter is not
restored following your instructions, let
Caius be condemned to pay to Titius so
much money as this matter will represent,
unless Stichus was sold and delivered to
Caius by Titius himself; otherwise, let him
be absolved.
A variation: Stichus’ return
• After a year with Caius, Stichus, missing his old
home to the point of depression, returns to his
former master. Titius, moved, offers Caius the
price back, but announces him he won’t allow
the slave to depart again.
• Can Caius sue Titius with reivindicatio?
• Gai. 2,42: Usucaption of movables requires a
year’s possession for its completion, of land and
houses, two years’ possession, a rule which
dates from the law of the Twelve Tables.
• What, if the slave returns to Titius after just one
month with Caius?
Actio Publiciana
• Let X be judge. If Caius has bought the slave discussed
upon and the possession thereof has been transferred to
him so that he would have become owner according to
the law of the roman citizens had a year elapsed, and
the slave is not restored to him following your
instructions, let Titius be condemned to pay to Caius as
much as this matter will represent; otherwise absolve
him.
• … and this slave does not belong to Ttius according to
the law of the roman citizens ... (exceptio iusti dominii)
• ... or Titius himself has sold and brought the slave to
Caius ... (replicatio rei venditae et traditae)
• In civil law, Titius is still owner, but Caius is protected by
the praetor as if he had already acquired ownership.
• Two owners: Titius, according to civil law; Caius,
according to praetorian law.
Gai. 2,40-41
• We must next observe that for aliens there is only one
ownership and only one owner at the same time of a
thing, and so it was in ancient times with the people of
Rome, for a man had either quiritary dominion or none at
all. They afterwards decomposed dominion so that one
person might have quiritary ownership of an object of
which another person had bonitary ownership.
• For if a mancipable thing is neither mancipated nor
surrendered before a magistrate but simply delivered,
the bonitary ownership passes to the alienee, but the
quiritary ownership remains in the alienor until the
alienee acquires it by usucapion; for as soon as
usucapion is completed, plenary dominion, that is, the
union of bonitary and quiritary ownership, vests in the
alienee just as if he had acquired the thing by
mancipation or surrender before a magistrate.
Acquisition a non domino
• Titius sells Stichus to Caius. Not only does
Caius receive possession: mancipatio is also
performed. But the slave belongs to
Sempronius.
• a) the slave runs back to Sempronius: does
Caius have any action against him? Does
Sempronius have any defense? Which would be
the result of the trial?
• b) the slave runs back to his friend Marcus, a
Roman citizen: does Caius have any action
against him? Does Marcus have any defense?
Which would be the result of the trial?