chapter_seven by hedongchenchen


									                                     Borkowski Chapter 7
                                     Acquiring ownership

   Two categories of acquiring ownership: inheritance upon death and inter vivos
   Ius gentium modes
        o Occupatio
                  First taker of ownerless property becomes its owner (res nullius)
                  Ownerless because never been owned before or previous owner ceased to be
                  Wild animals, islands, gems, etc classified as ownerless objects
                  Rules to ownership differ based on whether animal is tame or wild (based on
                   species, not habits)
                  Irrelevant to ownership that capture occurred on someone else’s land (more
                   important: effective control of the animal)
                  Tame animals (animus revertendi) cease to be owned when their instinct to
                   return stopped
                  Property of the enemy is the first taker (though military booty usually for
                   victorious general)
                  To be first taker of abandoned property, previous owner would have wanted to
                   be rid of it and you would have to have the intention of acquiring it
                  Occupatio of abandoned res mancipi sufficed to give dominium without the
                   need for a period of prescription
        o Accessio
                  Inseparable attachment of things belonging to different owners (one thing
                   incorporated in the other)
                  Incorporated property acceded to principal thing (example: if A builds house
                   on B’s land, B owns house)
                  Distinguishable from:
                           Commixito: things belonging to different owners mixed, but were
                            readily separable (could become common property through agreement
                            or separated if no agreement)
                           Confusio: things mixed that were not readily separable and can’t tell
                            whether things were the principal or the accessory (resulting mix
                            owned in common in proportion to the value of the parties’ respective
                            shares unless agreed otherwise)
                  Things considered not readily separable if undue effort, skill, or cost would be
                   required to separate them (or if separation would damage the property)
                  Accessio of land
                           Anything attached to land became part of it (land = principal)
                                 o Owner of land would own building built on it, but not
                                     necessarily the materials used to build it
                                 o If a person built with own materials on another’s land the
                                     materials were considered a “gift” to the landowner
                           If anything belonging to A is planted in B’s land, when it takes root it
                            becomes under the ownership of B
                           Avulsio: piece of land that attaches to your property becomes yours
                           Alluvio: deposit of soil on a person’s land through action of a river
                            becomes person’s property; confined to RIVERS
                           Island that appears in a river is common property of those on both
                            banks unless it’s more to one side than the other
                  Accessio of movables
                           Acknowledged following examples:
                                 o Textura: inseparable weaving of costly thread owned by one
                                     party into the garment belonging to another
                                 o Ferruminatio et plumbatura: welding or soldering an object
                                     belonging to one party to a principal object belonging to
                                 o Scripture: writing on or decorating parchment belonging to
                                     another with one’s own materials
                        o   Pictura: painting with one’s paint on the canvass belonging to
                   Resulting property usually belonged to owner of principal thing
                    (principal thing usually thing that is most valuable or what could exist
                    independently of other thing)
                   Words always accede to what they were written on
                   Sometimes owner of accessory thing entitled to compensation
o   Specificatio
           Acquiring ownership by creation of a new thing out of someone else’s
           Often mixed up with accessio
           Proculian view: moment of creation, the item is res nullius
           Intermediate view:
                    New thing belonged to creator if it was not reducible to original form
                    When reducible, owner of the original materials owned the new thing
           Application depended on whether a new thing had been created (nova species)
            – could not be just an altered or improved thing
           Question of faith only important for compensation (if creator in good faith and
            not in ownership of thing but possessed it, usually entitled to compensation
            when owner made a vindicatio)
o   Acquisition of ownership of fruits
           Natural fruits
                    Separatio: severance from fruit-bearing property
                          o Not necessary for control to be taken of severed fruits
                          o Bona fide possessor: appeared to outside world as though he
                               were owner (often have produced the fruits through his own
                          o Emphyteusis: tenant holding land through perpetual lease
                               entitled to fruits of land on their severance
                    Perceptio: collection or gathering of the fruits
                          o Acquirer had to physically collect/gather them (or on their
                          o Colonus: agricultural tenant holding land from owner under a
                               contract of hire; tenant allowed to keep fruits that he gathered
                               with permission of owner (otherwise, theft)
                          o Usufructuary: right to fruits that was not dependent on assent
                               of the owner
           Civil fruits (e.g. rent)
                    Transferred by delivery
o   Finding treasure
           Treasure definition
                    Must have been secreted in land
                    Did not include things that were dropped or accidentally lost or
                    Owner couldn’t be traceable
           Finder had no rights unless he was landowner
           Belonged to landowner on principle of accessio (things in the land accede to it)
           Hadrian eventually laid down rules that benefitted the finder: he was entitled
            to all property if he found treasure on own land or religious land; if found on
            another’s land it was shared between finder and landowner
           If treasure found as a result of a deliberate search, finder took nothing (belong
            to landowner)
o   Delivery (traditio)
           Traditio: transfer of ownership of a thing through delivery
           Most widely applicable mode
           Standard way of conveying res nec mancipi
           Used to transfer movables or land
           Traditio of res mancipi gave only bonitary ownership
           Two basic elements of traditio
                          Delivery
                               o Transferee should be put in possession of property
                               o Actual physical transfer to transferee or representative
                               o Other forms of delivery
                                          Traditio longa manu: property was indicated or pointed
                                           at, had to be able to be taken into transferee’s control
                                           at once (land, heavy movables)
                                          Traditio brevi manu: authorization by transferor that
                                           transferee could keep as his own a thing over which
                                           transferee already had control
                                          Constitutum possessorium: transferor agreed to pass
                                           ownership of thing to transferee but former retained
                                           temporary control
                                          Symbolic delivery: document drawn up, keys to
                                           building handed over, etc
                          Appropriate intent
                               o Both parties had to intend that ownership should be
                                   transferred by delivery
                               o Iusta causa: legal ground that was reason for delivery of the
                                   thing (ex: sale, gift, exchange)
                          Questioned whether essential in all cases
                          Mistakes were not fatal to valid traditio provided that each party had
                           required intention to pass and receive ownership (mistake ex:
                           transferor intended sale, transferee thought gift; putative causa)
                          Mistakes to identity of property or transferee could prevent tradition
   Ius civile methods
        o Mancipatio
                   Before XII Tables
                   Primary mode of transferring res mancipi until later Empire
                   Adapted for use in creating and terminating relationships in the law of persons
                   Highly formal
                   “Imaginary sale” – Gaius
                   Conveyance required the presence of transferor and transferee, property to be
                    transferred, at least five witnesses, and a libripens
                   Only as much could be conveyed as could be grasped (though one
                    representative animal could suffice for a flock; same with land)
                   Mancipatio of res mancipi transferred dominium (unsure if the same for res
                    nec mancipi but even if not, transferee would’ve become owner through
                   Ownership transferred unconditionally (except transferor could reserve a
                    servitude over the property) and immediately
                   Ownership passed only when price was paid
                   Could not be impugned on grounds as fraud or duress
        o Cessio in iure
                   Highly formal
                   Originated before the XII Tables
                   Performed in front of a magistrate, transferor, transferee, property to be
                   Transfer res mancipi and nec mancipi
                   More cumbersome than mancipation because of the necessity for a praetor
                   Chief uses in relation to incorporeal things (servitudes, inheritances)
                   Also adoption, emancipation, manumission
                   Mancipatio, cession, traditio comprise the Roman modes of conveying property
                    inter vivos
        o Usucapio
                   Acquisition of ownership by continued possession for the period prescribed by
                   Possession converted into dominium
                   Land acquired by two years’ use
                    One year for other things
                    Essentials: possession, lapse of time, continuity, good faith, iusta causa, and
                     property capable of being usucapted
                    Excluded from usucapion: things not capable of being owned privately, dotal
                     immovables, land belonging to ward in guardianship, stolen property
       o    Adiudicatio
       o    “partition” or “divisor” actions
       o    Awarded ownership of property to a person who either had not owned the property
            before or who had owned the property in common
        o   Made division or an adjustment of property
   Gifts
        o   Ground of acquisition of ownership
        o   Generally, delivery was what transferred ownership
        o   Donatio inter vivos
                  Only formal agreement to make a gift
                  Gifts between husbands and wives were banned as well as between
                   paterfamilias and people under his potestas
                  Restrictions on the maximum amount of a gift
       o    Donatio mortis causa
                  Gift made in contemplation of death
                  Didn’t’ take full effect until contemplated death of donor occurred
                  Revocation if the done predeceased the donor or if the donor became bankrupt
                  Operated outside of any will

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