Chapters
Originally, the property was not distinguished from ownership in Rome, and there was no general meaning of it, only the individual rights of the owner were enumerated. Only later did the determination of the floriculture property – dominium ex iure Quiritium – known in the Act of the XII Tables. In classical law, a completely legal concept of property was developed as a legal relationship superior to things, also denoting ownership with the word proprietas. Classical jurists consider property to be the person’s full legal possession of the thing, absolutely in terms of legal protection. The ownership of real estate appeared later than the movable one, which is clearly visible from the fact that the original designation of the estate (familia pecuniaqe, peculium) included only movable property, and the oldest way of acquiring property (mancipatio – manu capere) only applied to movables. The ownership of the real estate and land was most likely originally owned by the families (gentes), which were replaced by the state. Roman law distinguishes the following types of property:
1)quiritary property and 2) bonitarian property.
Ad 1) The Law of the Twelve Tables knew the florist’s property relating to household items (domus) of a peasant citizen. It was homogeneous and quite formalistic. It could only be granted to Roman citizens and mainly included res mancipi, obtained through mancipation and in iure cessio, but could also refer to res nec mancipi, for the purchase of which the usual tradition was enough without any special formalities.
Ad 2) The use of onerous formalities when getting rid of res Mancipi was a cause that inhibited the turnover and hence the goal of their easier alienation was limited only to the mere handing over of things, i.e. to tradition, without mancipation. For the buyer of the ways of tradition actually kept the thing in his property and although he did not become a florist’s owner, nevertheless having a publicist action against every third party, he was considered a bonitarian owner. The bonitarian owner could become a florist by acquisitive prescription.
praedia provincialia, i.e. real estate in provinces.
Property is the main and most important right in rem. Other rights in rem present themselves as restrictions on ownership. Anyone who had commercium could be the subject of property, and the subject of property was things in circulation. The right of ownership includes two characteristic functions: positive, manifesting itself in the possibility of freely disposing of the thing, and negative, allowing for the exclusion of third parties from influencing a given thing.
- on the basis of a contract in the event of consent to the exercise of another right in rem;
- by a provision of the law for reasons of public interest, to enable coexistence between neighbours and due to the prohibition of alienation.
There were a bit more limitations. Public burdens – road maintenance – introduced by the Lex Iulia Municipalis act, or readiness to hand over mail. There are also constraints of a construction nature (such as leaving a free strip of land between buildings perhaps 2.5 feet wide), sanitary (such as erecting a funeral pyre 60 feet from the building without the consent of the owner) or administrative restrictions.
The totality of restrictions on the right of property to allow neighbours to coexist is precisely the content of the neighbourhood law.
communio pro indiviso), which arises when the property of the same thing is owned by undividedly to several people. Each of these people has a certain share in the ownership right, known as the fractional part (also known as the ideal part – pars pro indiviso). The co-owners had to act in unison when it came to the whole thing, while each of them freely disposed of their share (e.g. they could get rid of or encumber the things only in a fraction of the amount they were entitled to).
Ways of acquiring property
One way of acquiring property is through appropriation, occupatio was to take possession of nobody’s property (res nullius). Nobody’s things include: 1) things that can be captured in the air, on the ground and in the sea (res quae caelo terra marique capiuntur), i.e. wild animals, fish, birds and tamed animals, if they have lost the so-called animus revertendi, that is, the habit of returning; 2) res hostiles – things of the enemy nation that have been in Roman territory since the outbreak of war, and things of nations inconsistent with Rome in the covenant (do not mix res hostiles: gains of war, including real estate, immovable property, prisoners of war; 3) things stranded on the seashore, such as shells, precious stones, etc., became the property of the one who first took possession of them; 4) insula in mari nata – an island created in the sea; 5) res derelictae ie things abandoned by the owner with the intention of getting rid of the property.
In Roman law there is also a connection, or accessio, in which a thing that is self-existent becomes a constituent part of the latter as the main thing by combining it with another thing.
- combination of movable and immovable property
- combination of real estate and real estate
- combination of movable and movable assets
A treasure (thesaurus) are valuable things, the owner of which cannot be determined as a result of being left hidden for a long time. Finding the treasure – inventio thesauri – resulted in the acquisition of property. According to the old law, the treasure belonged to the owner of the land on which it was found. Later, regulations were introduced stating that the found treasure is half to the finder and half to the owner of the land on which the treasure was found. If the finder was also the owner of the land or a treasure was found on the sanctified ground, it was in its entirety for the finder.
pars rei.
Prescription is the acquisition of property as a result of continuous possession for a period of time prescribed by law. Prescription was introduced for security reasons in order to establish the existing legal status. In Roman law, it removed the formal deficiencies in the act of acquiring property. The time required for acquisitive prescription was one year for movable property, and two years for real estate (the “good faith” principle had to be respected).
Derivative property Aacquisition by order of power
The ways of acquiring derivative property by order of power were:
- adsignatio – state authorities transferred ownership of land acquired during the war to private persons;
- venditio sub hasta – was the acquisition of state-owned military property by public tender;
- mancipatio;
- in iure cessio;
- traditio.
