Transcript Proces formułkowy - University of Wrocław

Property Law
Types of dominion over things
Ulpianus:
Nihil commune habet proprietas
cum possessione.
Possession and ownership are two
different things.
Types of dominion over things
•
Factual dominion: possession (its variations)
wielding (pure factual dominion)
• Legal dominion: ownership and numerous rights
in rem (easement, pledge, surface right,
perpetual usufruc)
Factual dominion - possesion
• corpus – physial dominion over a
thing
• animus – intention to retain the thing:
for oneself or for someone else.
Types of possession (1)
• possessio civilis – civil possession,
generally given legal possession in
various manners.
• possessio naturalis (detentio) –
natural possession (wielding), only in
exceptional circumstances granted
legal protection.
Types of possession (2)
• possessio bonae fidei – possession in
good faith, the conviction that
something belongs to us.
• possessio malae fidei – possession in
bad faith, the conviction that somethig
does not belong to us.
Types of possession (3)
• possessio iusta
- based on legal norms
• possessio iniusta (vi, clam, precario)
- not based on legal norms
Particular types of possession
• possessio ad interdicta – possession
protected by praetorian interdiction
- condition: animus rem sibi habendi – the
intention to keep the thing for oneself.
• quasi possessio – possession "as if"
- e.g. Possession of an interitance, as an estate is
an individual non-material thing, regardless of the
number of physical things and claims contained
in it.
Acquiring position
Rule: corpore et animo, simultaneously
handing over the physical thing and having
the desire to transfer possession.
Exceptions (discussed on the next slides):
• constitutum possessorium
• traditio brevi manu
Acquiring possession II
Exception (from the previous slide):
• constitutum possessorium
Transfer of possession on the basis of an
understanding, in which the previous owner-like
possessor (e.g. the owner of the thing) keeps the
thing in his dominion as a dependent possessor or
wielder on the basis of a legal relationship (e.g.
rental contract), which the parties establish jointly.
Acquiring possession III
Exception (from the previous slide):
• traditio brevi manu
Transfer of owner-like possession to the
dependent possessor, or to the wielder, on
the sole basis of a contract. For example,
when the owner of a house sells it to the
person currently leasing it.
Protection of possession
• Interdicta retinendae possessionis
Served to protect current possession which
was being interrupted.
• Interdicta recuperandae possessionis
Served to restore possession after it was
lost.
Interdicta retinendae possessionis
1. Interdictum uti possidetis
– concerned real property, the rightful
possessor at the moment of the interdict’s
issuance was victorious.
2. Interdictum utrubi
–
concerned moveables, the rightful
possessor with the longest period of
possession over the preceding year was
victorious.
Interdicta recuperandae possessionis (1)
1. Interdictum unde vi
– valid for one year from dispossession by
force.
2. Interdictum de vi armata
– no limitation for someone dispossessed by
armed force.
Interdicta recuperandae possessionis (2)
3. Interdictum de precario
– could be enforced against a recalcitrant
possessor who was obliged to return a
thing and failed to do so.
4. Interdictum quod vi aut clam
– could be enforced against the possessor of
land acting in secret and with force, e.g.
one who cut down a tree.
The concept of ownership
• No general Roman definition
• The only general description is found in
Justinian’s Institutions:
Plena in re potestas
(Full dominion over a thing)
The concept of ownership (2)
Distinguishing factors:
• Protection of possession via actiones in
rem.
• Actiones in rem were effective erga
omnes, meaning including individuals with
whom the owner was not linked by any
legal realtionship.
The substance of ownership (1)
• Roman jurists understood the substance
of the right of ownership intuitively and
described it causistically.
• In the Middle Ages, a general and abstract
enumeration of the owner’s rights was
developed.
The rights of the owner
•
Ius possidendi – right to possess the thing
•
Ius utendi – right to use the thing
•
Ius abutendi – right to use the thing up
•
Ius fruendi – right to derive benefits from the
thing
•
Ius disponendi – right to dispose legally of
the thing
Types of full legal dominion over
things in the Roman state
• Dominium ex iure Quiritium
• State of res in bonis habere
• Possessio et usufructus
• Property of Latins
• Property of peregrines
Limitations on the right of ownership
in public law
• Sanitary
• Communication
• Construction
• Possibility to dispossess for the
public good
Limitations on the right of ownership
in private law
• Law of neighbours
• Limited property rights
• Obligatory relationships
Joint ownership
• Only in fractions
- Every owner was entitled to defined,
abstract fractional ownership of the entire
thing, e.g. ¼.
- Potential division quoad usum, meaning for
use
Division of joint ownership
•
Actio communi dividundo – action used for
establishing joint ownership.
•
Actio familiae erciscundae – action used in
probate matters.
•
Joint owners could decide themselves about a
division of joint ownership.
•
In case of a dispute, a court could decide about
the division of jointly-owned property, such as
parcels of land, or could order payments to the
other joint owners.
Secondary acquisition of ownership
•
Mancipatio – formal ceremony transferring
ownership before 5 witnesses and weigher
(libripens).
•
In iure cessio – formal transfer of ownership
before a civil servant.
•
Traditio – informal transfer of ownership in
objects of lesser value.
During the later imperial period (dominate) the first
two forms disappeared, and the only way of
transferring ownership was traditio.
Primary acquisition of ownership
•
Usucapio – acquisitive prescription, meaning
the acquisition of ownership in a thing with the
passage of time (sometimes classified as a
seperate way of acquiring ownership)
•
Occupatio – appropriation (e.g. wild animals)
•
Accessio - joining
•
Specificatio - transformation
•
Fructuum perceptio – acquisition of benefits
•
Thesauri inventio – finding a treasure
Protection of right of ownership
• Rei vindicatio – an action demanding
the return of stolen property.
• Actio negatoria – an action demanding
the
cessation
of
violations
of
ownership.
• Actio Publiciana – an action by an
informal possessor in good faith
demanding the return of the owned
thing.
Rights in the property of others
• Servitudes
• Emphyteusis
• Right of the surface (Superficies)
• Pledge
servitutes praediorum rusticorum,
Servitudes on rural lands
• iter - right of passage on foot through a
•
•
•
•
neighbour’s land
actus – right to herd animals
via – right of way encompassing the above
aquae ductus – right to conduct a
waterway
aquae haustus – right to draw water
servitutes praediorum urbanorum
Servitudes on urban lands
•
•
•
•
•
•
servitus oneris ferendi
servitus tigni immitendi
servitus stillicidii
servitus altius non tollendi
servitus luminis
servitus fumi immittendi
servitutes personarum
Personal servitudes
•
•
•
•
ususfructus – usufruct
usus - usage
habitatio – right of inhabitation
operae servorum et animalium – right to
use the labour of others’ slaves and
animals
General principles of servitudes
• servitus in faciendo consistere nequit – a
servitude can not consist of activity
• servitus servitutis esse non potest – a
servitude can not be set up on an
easement
• servitutibus civiliter utendum est –
servitudes should be used sparingly
• nemini res sua servit – one can not have a
servitude on one’s own property
Specific rules concerning servitudes
1.Personal servitudes ended not later than
the death of the entitled person
2.Easements (servitudes in land) should also
meet additional conditions:
• utilitas – useful for the neighbour
• vicinitas – immediate vicinity
• perpetua causa – permanent need
Perpetual leasehold - origins
1.Ius in agro vectigali – Roman leasehold of
public lands
2.Emphyteusis – from the Hellenic law,
resulting from private law actions such as
contract, testament
3.Emperor Zenon in 480 decided about the
seperateness of institutional emphyteusis
from other property rights and obligations
Perpetual leasehold – establishment
Two possibilities
1.Contractus emphyteuticarius – a special
emphyteutical contract
2.Testamentum - testament
Perpetual leasehold – rights of the
leaseholder
1.To collect benefits at the moment of
seperation from the superior thing
2.Possibility to decide independently about
changes in crop types
3.Use of actions designed to protect
possession
4.Right to dispose of leasehold
Permanent leasehold – duties of the
leaseholder
1.Annual rent paid to owner
2.Payment of all taxes burdening the land
3.Maintaining land in good condition
4.Informing owner of intention to dispose of
leasehold
5.Payment of laudemium upon effective
disposal of leasehold
Permanent leasehold – expieration
1.Destruction of land
2.Convergence of leasehold with ownership
(e.g. Owner exercises right of pre-emption)
3.Removal of leaseholder (e.g. for failure to
pay rent for three successive years)
Superficies
• This right did not infringe the principle
superficies solo cedit (what is permanently
connected to the ground belongs to the
owner of the ground)
• Protected through a special
(interdictum de superficiebus)
interdict
• Only in Justinian law was the superficiary
granted actiones in rem
Pledge – essence
• Real securrity for a debt
• Accessorial
•
Secured only a specified receivable
(exception: pignus Gordianum)
Pledge – historical development
• Fiducia – fiduciary pledge, associated with
transfer of pledged item to the creditor
• Pignus – pledge in which the creditor only
wields the pledged item; presently
available in pawn shops
• Hypotheca – contractual pledge, the item
remained in the dominion of the debtor
Fiducia
• Fiduciary contract transfering ownership
of a thing
• In archaic law there was no civil protection
for a fiduciary debtor
• In later law, the debtor was granted a
seperate right of action, actio fiduciae
directa
Pignus
• This form of pledge appeared at the
beginning of the republic
• Consisted in the pledgee being the
wielder of the item
• The property right arose out of a contract
with the same name
Additional covenants which could be
concluded in the case of a pledge
• Lex commissoria, forfeiture clause – the
object of the pledge became the property
of the creditor in the event of failure to pay
the debt
• Pactum de vendendo – a contract for sale
of the item by the lender if the debtor
failed to pay the debt, but settlement was
required
• Antichresis – a contract on collecting
Hypotheca
•
Origins in the 2nd century BC
•
Milestone at the turn of the 2nd and 1st
centuries BC when praetor Salvianus introduced
a special possession interdict, interdictum
Salvianum
•
In the mid-1st century the praetor Servius
introduced a separate actio in rem, called actio
Serviana
•
In the Roman Empire there was no special land
register, only Egypt had a proper land register.