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Transfer of property ownership in ancient Rome

This post is also available in: Polish (polski)

Every Roman owner was entitled to transfer his title to the property, however for the actual transfer to occur there were separate legal procedures required between the transferor and the buyer. Apart from the agreement between the parties involved there was also needed a visible and obvious act of transferring the control over any given thing. These requirements were abolished in 293 CE with an emperor’s act in accordance with simplifying the property trading.

Originally, the process of transferring property ownership could be divided into two phases. In the first, preliminary, phase the parties committed to transfer ownership. Only in the second phase, the transfer took place in the form of one of the disposing actions. Such a dual way of transferring property was intended mainly for the protection of the owner who was persuaded to think over his decision and also additionally allowed third parties to keep track of who the ownership belongs to. Moreover, thanks to the methods involved it allowed for an easy witness acquisition.

The oldest method was mancipatio. One side was presenting the object of the agreement and the other side was presenting an accordingly weighted amount of ore. After coins were introduced mancipation began to focus on more symbolic acts, like presenting a small coin or a small piece of ore but it was still very important as a public legal formality concerning the transfer of title to the property. Mancipation required five witnesses who had to be adult citizens and an additional person to hold the scales. In such arranged circumstances the buyer was supposed to seize the object of the transaction (hence mancipatiomanu capere meant to catch with one’s hand) and strike the scales with a coin which represented the payment. In terms of people who could be involved in this method of transferring ownership, apart from Roman citizens, it was also available to Latins and wanderers trading with the Romans. The reasons to use this method were varying from adoption or emancipation to transferring a wife to her husband’s agnatic power.

Another method of transferring the title to the property was in iure cessio. This method was carried out as an actual legal trial in which the plaintiff had to use a vindicatory formula. If the defendant was not trying to attempt a counter-vindication or agreed with the plaintiff’s claim, the plaintiff’s right to the property was confirmed. This system has been used from the times of the Law of the Twelve Tables. It was used when both parties wanted to legally confirm ownership transfer without any dispute between them. Therefore, the transferor was only an apparent defendant and the buyer only an apparent plaintiff in the court in order to obtain official confirmation of the transfer. Differently to the mancipation, this method allowed for the transfer of immaterial properties (inheritance, usufruct and so on).

The last of the transferring methods was traditio, which means a release. This method, known since the dawn of time not only in Rome, was simply a transfer of an object from one person’s hand to another’s and as such was available not only for the citizens but also for the Latins and wanderers. This kind of property transfer was intended only for material properties only but was not necessarily an ownership transfer – it could be used as a method to rent a thing or leave it in a deposit, which means the receiver was becoming a safekeeper. In reality it was the most common way to transfer property in the everyday trade. Only in Justinian’s law, it became the sole method of property transfer, after mancipation and in iure cessio were declared obsolete. In contrast to the other two methods, the tradition depended on the existence and acceptability of the legal cause for the property transfer (while the other two methods depended only on formal requirements). Such a legal cause could be a purchase and sale contract, an exchange or a donation (but not a donation for one’s spouse, as this was prohibited in the Roman law).

In Justinian’s law, the requirement of the actual transfer of the object was replaced with a written statement by the seller. At the same time, the other methods became obsolete and there were attempts of removing any of their traces from official records on law, including overwriting and simple crossing out of words in the classical texts and the new Codex of Justinian.

Author: Jakub Ernt
Sources
  • Agnieszka Kacprzak, Jerzy Krzynówek, Prawo Rzymskie - Repetytoria, Warszawa, 2002, C. H. Beck
  • Kazimierz Kolańczyk, Prawo Rzymskie, wydanie 5 zmienione, Warszawa, 2007, LexisNexis
  • Witold Wołodkiewicz, Maria Zabłocka, Prawo Rzymskie – Instytucje, Warszawa, 2014, C. H. Beck
  • Wojciech Dajczak, Tomasz Giaro, Franciszek Longchamps de Beriere, Prawo Rzymskie - u podstaw prawa prywatnego, Warszawa, 2014, Wydawnictwo Naukowe PWN

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