The Ancient Library

Scanned text contains errors.



(Ulp. Frag, xix.) are praedia in Italico solo, both rustic and urban ; also jura rusticorum praediorum or servitutes, as via, iter, aquaeductus j also slaves, and four-footed animals, as oxen, horses, &c., quae collo dorsove domantur. Other things were nee mancipi.

All the things have been enumerated which are the object of dominium, and some which are not. Every dominus has a right to the possession of the thing of which he is doruiYois ; but possession alone, which is a bare fact without any legal character, neither makes a man dominus, nor does the want of possession deprive him of dominium. Possession has the same relation to a legal right to a thing, as the physical power to operate upon it has to the legal power ; and accordingly the doctrine of possession precedes that of ownership. Things cannot be the objects of possessio civilis which cannot be the objects of dominium.

Certain things are not properly objects of owner­ship (dominium)) though a claim to them is pro­secuted by an actio in rem: they are servitutes, emphyteusis, superficies, and pignus and hypotheca.

Dominium properly signifies the right of dealing with a corporeal thing as a person (dominus) pleases ; this, of course, implies the right to ex­clude all others from meddling with it. The do­minus has the right to possess, and is distinguished in that respect from the bare possessor, who has only the right of possession. He who has the ususfructus of a thing, is never considered as owner; and proprietas is the name for that which remains after the ususfructus is deducted from the owner­ship. Ownership may be either absolute, that is, as complete as the law allows any ownership to be, or it may be limited. The distinction between bare ownership and ownership united with the beneficial interest, is explained in another place. [BoNA.] A person who has no ownership of a thing, may have rights in or to a thing which, as far as they extend, limit the owner's power over his property, as hereafter explained. Ownership, being in its nature single, can only be conceived as belonging to one person ; consequently there cannot be several owners of one thing, but several persons may own undivided shares or parts of a thing.

As a man's right to deal with a thing and to exclude others from the use or enjoyment of it, may be limited, this may arise either from his being bound to allow to another person a certain use or enjoyment of the thing of which he is dominus, or from his being bound to abstain from doing certain acts on or to his property, and. for the benefit of some other person.

This limitation of a man's enjoyment of his own is explained under servitutes.

In order to acquire ownership, a person must have a legal capacity to acquire ; and ownership may be acquired by such a person, or by another for him. There must also be a thing which can be the object of such ownership, and there must be a legal mode of acquisition (acquisitio civilis). Ownership may be acquired in single things (ac­quisitio rerum singularum\ or it may be acquired in a number of things of different kinds at once (acquisitioper universitatem),'m which case a person acquires them not as individual things, but he ac­quires the parts by virtue of acquiring the whole. The latter kind of acquisition is either successio inter vivos, as in the case where a man adrogates another,


and so becomes the owner of all the adrogated per­son's property (Gaius, iii. 21) ; or it is successio mortis causa, as in the case of a testamentary heres, or a heres ab intestato.

Acquisitiones per universitatem are properly dis­cussed under other heads [AnopTio ; heres ; successio ; universitas]. The following re­marks apply to acquisitiones rerum singularum. Acquisiti; nes were either civiles (ex jure civili) ; or naturales (ex jure gentiuni), that is, there was no formality prescribed for the mode of acquisition: in both cases dominium could be acquired. The civiles acquisitiones of single things were by manci-patio, in jure cessio, and usucapio : those natural! jure were by traditio or delivery. In the case of res mancipi, the only modes of acquiring dominium were mancipatio, in jure cessio, and usucapio ; but usucapio applied also to things nee mancipi. The alienation of things nee mancipi was the peculiar effect of traditio or delivery (Ulp. Frag. xix. 8), and if there was a justa causa, that is, some legal ground or motive for the delivery, dominium was thus acquired ; traditio, in the case of a thing man­cipi, merely made it in bonis, and the dominium or ownership continued unchanged. The notion that in the case of res nee mancipi, bare tradition with a justa causa did not confer quiritarian ownership or dominium, is erroneous ; for when the Roman law did not require peculiar forms, the transfer of ownership was effected in what may be called the natural way, that is, the simplest and most easy way in which the parties to the act could show their meaning and carry it into effect.

A man who was dominus of a thing, whether acquired jure civili or naturali, prosecuted his right to it in the same way, by the rei vindicatio. He could not of course prosecute such a right unless he was out of possession ; and, in order to succeed, he must prove his ownership. If he had a thing in bonis, and was in possession, he could acquire the ownership by usucapion: if he was out of pos­session, it seems not an improbable conjecture of Unterholzner (Rhein. Mus, fur Jurisprud. Erster Jalirgang, p. 129), that he was aided in his action after the time when the legis actiones fell into dis­use and the formula was introduced (for as to a previous time it is difficult to form any conjecture) by the fiction of his having received the property by mancipatio. There are examples of a similar fiction in the ease of the bonorum possessor and the bonorum emtor. (Gaius, iv. 34, 35.) A man could only dispose of a legacy by his will per vin-dicationem (Ulp. Frag. xxiv. 7) when he had the dominium of it: if he had not the dominium, he could only give per damnationem or sinendi modo. A slave who was the property of his master (domi­nus) might attain the Roman civitas by the act of manumission : if he was only in bonis of the person who manumitted him, he became a Latinus by the act of manumission. The difference between quiri­tarian ownership and in bonis was destroyed by the legislation of Justinian, who declared in bonis to be complete ownership.

Some modern writers enumerate in addition to the civiles acquisitiones here enumerated, addictio, emtio sub corona, sectio bonorum, adjudicatio, and lex (Ulp. Frag. tit. xix. § 2), by which last they understand those circumstances under which some special enactment gives property to a person ; and caducum [caducum] is mentioned as an instance.

A bonae fidei possessio was not ownership (do-

About | First | English Index | Classified Index | Latin Index | Greek Index



page #  
Search this site
All non-public domain material, including introductions, markup, and OCR © 2005 Tim Spalding.
Ancient Library was developed and hosted by Tim Spalding of