James Grech LL.

B 1st Year --------------------

R W LEE: The Elements of Roman Law

Roman Law of Property
I. Preliminary: 1 . Thin!: By Thing (Res), the Romans understand any unit of economic value. The common link bet een the various res is that hoever has a res is actually or !ros!ectively so much better off. Buckland defines "res# as being any economic interest guaranteed by la , any right or rights having a money value, any interest e$!ressible in terms of money hich the la ill !rotect. 1 ". #lassification of Thin!s% Things may be classified according to their !hysical nature, or according to the technical rules of the legal system in &uestion. Thus if e classify things as movable and immovable e are looking at their !hysical nature, 'f e classify them as manci!able or non-manci!able, e are looking at the arbitrary distinctions created by la . 1st Distinction% 1"1. $o%a&les ' Immo%a&les% This classification is not as sim!le as it looks. 't is difficult to say for legal !ur!oses hether a thing is to be regarded as movable or immovable. Besides, a thing hich may be treated as movable for one !ur!ose, may be treated as immovable for another !ur!ose. Thus, e are not concerned ith the &uestion of hat things are in themselves, but rather hat is the attitude of the la in regard to them. There ere some differences bet een movable and immovable !ro!erty. The !eriods of usuca!io ere not the same (()*). +ovables could be stolen. ,and not. (-.() 'n relation to !ossession and the !ossessory interdicts the rules ere different. Real or !raedial servitudes are naturally ina!!licable to movables. 1 (. Thin!s &eyon) Personal *wnership: /ustinian says that things are either in our !atrimony or beyond our !atrimony, by hich he means that there are certain things hich are not the sub0ect of !rivate o nershi!. These are% a) Res Communes% Things common to all men, 1 i.e. the air, running ater, the sea, the seashore). b) Res Publicae% Things !ublic, 1 i.e. rivers and harbours c) Res Universitatis% Things belonging to a cor!orate body, such as theatres, racecourses and so on in cities. d) Res Nullius com!rising% (i) Res sacrae% sacred things 1 i.e. churches and other things dedicated to the service of 2od

(ii) (iii)

Res Religiosae% religious things, i.e graveyards and graves Res 3anctae% sanctioned things, such as city alls and gates. These are said to be sanctioned because any offence against them is !unished ca!itally, and !enalties im!osed by la are termed sanctions.

4ll this is very confused. The distinction bet een things !ublic and things common is ill-defined and has no !ractical value. Rivers, for e$am!le, ere said to be !ublic only if they flo ed all year round. 1 +. Res ,-lli-s% The !hrase res nullius is used in various senses a) to include all the things hich according to Roman ideas ere not susce!tible of !rivate o nershi!. (the term used in a general sense) b) s!ecifically, as above, of things sacred, religious or sanctioned. (the term used in
a more specific sense).

c) of things hich though susce!tible of o nershi!, are not at the moment o ned, e.g. ild animals not ca!tured, or things hich have been abandoned by their o ners (Res 5erelictae). 1 .. Res #orporales ' Res Incorporales: 6or!oreal things are things hich can be touched, such as lan)/ a sla%e, a garment, gold, silver and other things innumerable. 'ncor!oreal things are things hich cannot be touched. 3uch are things hich consist in a right, as an inheritance, usufruct and obligations in hatever ay contracted. 1"0. Res $ancipi ' Res ,ec $ancipi: This distinction e$isted in Roman ,a until it as abolished by /ustinian. +anci!able things ere things hich ere transferred by manci!ation. 4ll other things ere non-manci!able. 7e ill s!eak of this hen e s!eak of the modes of ac&uisition. (see (89-(-*) 1"1. 2omini-m E3 J-re 4-irit-m 5o nershi! by &uiritary title)% Roman o nershi!, or as it as called, o nershi! by &uiritary title, im!lies a Roman o ner of a Roman thing ac&uired by Roman !rocess. 't as not available for !eregrines, because they ere not citi:ens. 't as also ina!!licable to !rovincial land. There ere other distinctions. But these distinctions ere to lose their significance ith the constitutio 4ntoniniana (45 ;(;) hich had e$tended citi:enshi! to the hole Roman orld. II. $o)es of 6c7-isition 1"". The modes of ac&uisition are the !rocesses by These are distinguished bet een, hich a thing becomes mine.

<riginal% hen the thing of hich ' become o ner had no !revious o ner, or at least hen my o nershi! stands in no necessary relation to that of the !erson ho o ned it before me.

 5erivative% hen ' derive my title from someone ho o ned before me, and take sub0ect to any real burdens hich attach o the !ro!erty. 1"(. ,at-ral an) #i%il $o)es: /ustinian says that e ac&uire things either by natural la (the 0us gentium), or by civil la . The first is the older because it has e$isted since time immemorial. 7e shall first s!eak of the civil modes of ac&uisition and then of the natural modes. (in the order preferred by Gaius and not that found in the Institutes). 4s far as the legal conse&uences are concerned, there is no difference bet een them. Both alike made the ac&uirer the o ner of the thing ac&uired. III. 6c7-isition &y #i%il Law: 1"8. $o)es: The civil la modes of ac&uisition described in the 'nstitutes are =suca!io and 5onatio. 'n the earlier la the t o !rinci!al modes of ac&uisition by civil la ere +anci!atio and cession in court ('n /ure 6essio). /ustinian does not mention these in the 'nstitutes. >et they are of historical im!ortance and e ill deal ith them. Besides there is also the mode of ac&uisition kno n as Traditio hich even though in the 'nstitutes, it is found in the natural modes of ac&uisition, e ill treat as a civil mode of ac&uisition. Thus e ill s!eak of, 569 $ancipatio 5B9 In J-re #essio 5#9 :s-capio 529 Tra)itio 5E9 2onatio 5;9 2os

569
1"+. $ancipatio: 2aius describes manci!atio as a fictitious sale. The ceremony of manci!atio re&uired that not less than five itnesses ere to be brought together? these had to be Roman citi:ens above the age of !uberty. 4nother !erson had to hold the bron:e balance and as called the libri!ens. Then the !erson ac&uiring by manci!ation had to take hold of the thing to be transferred and say these ords, This thing ' declare to be mine by &uiritary right, and be it bought to me ith this bron:e and bron:e balance. Then he had to strike the balance ith a !iece of bron:e and give it to the transferor by ay of !rice. The thing being transferred had to be !resent, 'n the case of immovables, a sod of earth as taken to re!resent the immovable !ro!erty. There is no a!!arent reason hy the same symbolism couldn#t have been used for movable !ro!erty, and !erha!s this as done hen the movable !ro!erty as large. 1".<1(0. ;ictitio-s sale= 7hy does 2aius s!eak of manci!atio as a fictitious sale@ Before the introduction of coined money, the medium of e$change as uncoined bron:e hich had to be eighed to determine the amount. This as the function of the libri!ens. 7hen coined money came into use, the eighing became fiction. The

ceremony as no merely dramatic, for the transfer as being done for a sum of ready money. The actual contract or sale took !lace, so to say, off stage. Ao doubt that the transition from the real to the fictitious as gradual. 1(1<1(>. What thin!s co-l) &e con%eye) &y this process= The ans er is res manci!i. The term includes% (a) land and houses in 'taly and in certain !rivileged districts outside 'taly (b) rustic servitudes over such land (c) slaves and beasts of draft and burden Bverything else including !ublic land, !rovincial lands, and urban servitudes ere res nec manci!i. 7hy ere the above-mentioned things grou!ed together in one class@ Because they constituted the !rinci!al ealth of a !rimitive rural community. These ere the things entered u!on the census roll and determined the assessment of the individual citi:en. 1( . En) of $ancipatio: +anci!atio as a living institution in the time of 2aius and even t o centuries later, but the ceremony became unnecessary as a recital in a ritten instrument that the forms had been com!lied ith as allo ed to serve the same !ur!ose. 'n time, manci!atio as su!erseded by traditio. 7hile it lasted, it had the advantage that o nershi! could be transferred by this method ithout transfer of !ossession (therefore not necessarily on the s!ot). But in the later Bm!ire, a deed of transfer as e&ually available for this !ur!ose.

5B9
1(". In J-re #essio : This is another civil la mode of ac&uisition. 2aius describes ho in 0ure cessio took !lace. The !erson to hom the cession as being made had to go before a magistrate of the Roman Ceo!le (such as the !raetor =rbanus), hold the thing in &uestion and say, This thing ' declare to be mine by &uiritary right. This as called %in)ication. 7hen he had vindicated, the !raetor ould ask the !erson ho is ceding hether he anted to make a co-nter<%in)ication. 'f he says no or nothing, the !raetor ould a ard the thing to the !erson ho as vindicating it. 4s can be seen, the cession in court as very similar to manci!atio. 'n fact, 2aius says that often !eo!le used manci!atio. This ould avoid the trouble of going to the !raetor or !rovincial governor, since this could be done more sim!ly in front of five itnesses. >et, =l!ian highlights the great distinction bet een the t o modes ? in @-re cessio co-l) &e s-e) for res nec mancipi as ell. 1((<1(8. When was in @-re cessio -se)= This form of conveyance as used for the follo ing !ur!oses% (a) to alienate cor!oreal (tangible) !ro!erty of every kind hether res manci!i or res nec manci!i. (b) to transfer incor!oreal things other than obligations, such as inheritance. (c) to create and e$tinguish !raedial servitudes and usufruct.

Dor urban servitudes, this as the only method available. Rustic servitudes could also be created by manci!ation ((-(). 7e have also met in 0ure cessio in connection ith manumissio vindicta ())), ado!tion (((E) and the tutela legitima of omen ((E9). Being a civil mode of ac&uisition, in 0ure cessio as available only to Roman citi:ens (5ominium e$ 0ure Fuiritum). 't !assed out in use before /ustinian, and for this reason, it is not found in the 'nstitutes.

5#9
1(+<1(.. :s-capio% 't may ha!!en that a !erson is in !ossession of !ro!erty but ithout legal title. 'n such a case all mature legal systems recognise him as o ner, or at least give substantial advantages of o nershi!, if he continues to !ossess for the !eriod defined by la and satisfies other necessary conditions. This is called ac7-isiti%e prescription. The Romans gave effect to this mode of ac&uisition under the name of usuca!io. 'n order that the !ro!erty may be ac&uired by usuca!io, the follo ing conditions had to be satisfied. These criteria ere necessary so that abuse ould be curtailed. These criteria ere% 519 Res Gabilis (the ob0ect must be ca!able of being transferred) 519 Titules&ue (0ust title- "0ustus titulus#) 5>) Dides (2ood Daith) 5 9 Cossessio (Cossession) 5"9 Tem!us (Time)

180. Res Aa&ilis: The thing in &uestion must be ca!able of being sub0ect of transactions bet een Roman citi:ens (res in commercio), and must not be declared inca!able of alienation by any rule of la . This e$cludes% - res e$tra commercium (e$ res sacrae, res religiosae, res sanctae) - a free man (not a slave) - !rovincial land, technically inca!able of !rivate o nershi! - dotal immovables because these are inalienable - immovable !ro!erty of !u!illi and minores - stolen !ro!erty (res furtiva)-even if the !ossessor as in good faith - things movable or immovable !ossessed by violence (res vi !ossessa) 181. J-st Title: Dor 0ust title or 0ust cause, there must have been a !revious event or a contem!oraneous one hich in normal circumstances, ould make ac&uisition of !ossession take effect as ac&uisition of o nershi! as ell. 4 mere handing over of a thing is not enough. Dor usuca!io, transfer made for momentary convenience, or by ay of loan or de!osit, is not enough. Thus, a man may ac&uire by ay of sale, gift, legacy or so forth- there must be an actual sale, actual gift etc. 'f the thing as a res derelictae, then there must be abandonment by a non-o ner and something e&uivalent to occu!ation (see% occu!atio).

181. Goo) ;aith: Dor usuca!io, there must be good faith. 'f a !erson finds himself in !ossession as o ner ithout civil la o nershi!, this is usually because? (a) he has ac&uired from a !erson ho had no title to convey the o nershi!. (b) he has ac&uired by a !rocess not a!t to make him civil o ner. The second situation usually arose hen a res manci!i as transferred by a !rocess of traditio, not manci!atio ( hich did not re&uire a formal ceremony). 't could also e$ist in the case of bonitary o nershi!. To constitute good faith, the ac&uirer must honestly believe that the transaction has made him o ner at least by !raetorian title. This generally im!lies a belief founded on a mistake of fact, not a mistake of la , i.e. the ac&uirer believed the !erson ith hom he negotiated as the o ner or had the right to alienate. Thus, ' can usuca!e if ' have bought from a !u!illus, not authorised by his tutor, B=T <A,> if ' thought that he as !ubes (above legal age). The same ha!!ens if ' bought from an insane !erson, thinking he is sane. 't as enough that !ossession originated in good faith. 't as not necessary that the good faith remains throughout. Thus, if ' come into !ossession of a thing in good faith, for e$am!le by inheriting it, and later ' start having sus!icions that the thing as stolen, ' still have the right to usuca!e, even though the good faith did not remain throughout since ' had started to sus!ect. <bviously, if ' kne before ' came into !ossession that the ob0ect as stolen, then there is no good faith. Note: The Canon a! re"uired good faith throughout# and this has
influenced modern codes.

18>. Possession% There must be 0uristic !ossession, not mere detention. This im!lies corp-s an) anim-s- !hysical control and the intention to possess as owner. These need not necessarily co-e$ist in the same !erson. 4 !erson may ac&uire and hold !ossession through a slave, a son in !o er, or a free agent. (;E.). The agent must intend to ac&uire !ossession not for himself, but for the o ner. The !rinci!al must intend to ac&uire !ossession through the agent. 7hen a slave or a son ac&uired made an ac&uisition for the !eculium, the time of !ossession for usuca!io starts to run in favour of the master or !aterfamilias even if he as una are of such ac&uisition. 'n the case of a free agent ho has a general authority to ac&uire !ossession for his !rinci!al, usuca!io does not start to run until the !rinci!al has kno ledge of the the ac&uisition in &uestion. 18 . Temp-s: The !ossession must continue uninterru!ted for the !eriod defined by la . 'n the T elve Tables, this as fi$ed at t o years for immovables, and one year for other things (0ust like +anus marriage). ,ater, this !eriod as e$tended first to five years, then to ten years (to give enough time for a !erson ho for e$am!le, has been to ar, to take note of his missing ob0ect). 'nterru!tion of usuca!io is termed usur!ation. 4ny actual usur!ation, even for a short time arrested the course of usuca!io and i!ed out the effect of !revious !ossession (0ust like the trinoctiumtrinoctio absentia ((;;) hich interru!ted the usuca!io). 'n calculating the time of !ossession, the heir as allo ed credit for the unbroken !ossession of his !redecessor in title 0oined to his o n. 't as enough that the !redecessor had good faith, and a!!lied still if the successor kne the title to be defective. This a!!lies only to the universal successor. The !articular successor (!urchaser, donee, legatee) stood in a different !osition. Gere both the !redecessor and the successor had to have good faith. 18(<18+. ;-rther ,otes on :s-capio: =ntil the !rocess of usuca!io had run its course, if the !ossessor lost !ossession, he could not vindicate the !ro!erty from a

third !erson, because he could not truthfully assert that the thing belonged to him by &uiritary title. But the !raetor !rovided a remedy in the 4ctio Cubliciana in rem, hich allo ed such !erson to recover the !ro!erty as if time had already run in his favour. The institution of usuca!io as available only to Roman citi:ens and only in res!ect of Roman things susce!tible of Roman o nershi! (dominium e$ 0ure Fuiritum). 't did not a!!ly to !rovinces and to !rovincial land. 'n the !rovinces there e$isted different rules kno n as long time !rescri!tions. 7hat#s im!ortant to remember is that a Roman citi:en, any here, ac&uired movables by the normal !rocess of usuca!io after one year#s !ossession. (later this !eriod as e$tended as already said). 181. Other Modes of Acquisition by Civil a! : $roperty might %est in a person by statutory title (lege). The le& $apia $oppaea# for e&ample# denied unmarried and childless persons the right to ta'e as heirs or legatees and %ested the inheritance or legacy in others. (nother case of statutory title !as created by the constitution of )*+(D. ,ere# a person !ho too' possession of a thing by %iolence# !hen he forfeited it to the dispossessed o!ner# that thing became the latter-s o!nership through statutory title. 1+1. 6)@-)icatio: This as another civil la title. Gere, one could become the o ner of a thing through a 0udge#s decision. The 0udge as directed to a ard !ro!erty in division among the interested !arties. The actions hen this ha!!ened ere - (a) for division of !ro!erty o ned in common. - (b) for division of an estate vested in co-heirs. - (c) for determining boundaries.

529
101. Tra)itio 52eli%ery9: This means transfer of !ossession ith the conse&uence that the o nershi! of the thing transferred vests in the transferee. The essential conditions of this mode of ac&uisition ere% 10>. (a) The thing must admit of delivery, and of ac&uisitions by delivery. This includes in general all cor!oreal things, movable and immovable. 't e$cludes incor!oreal things hich do not admit of delivery (;*;), and e$cluded before /ustinian, res manci!i, hich could not be ac&uired by this method ((8;). <bviously, it e$cluded also things hich could not be o ned by !rivate individuals (res e$tra commercium) but that is common to all modes of ac&uisition. 10 <10". (b) The transferor must be com!etent to give and the transferee to ac&uire o nershi! by this method. Gere there ere set rules a!!licable to both !arties ( hich e ill see later on). Besides, there ere certain circumstances hen the o ner could not convey, e.g. a husband, though, technically the o ner, could not alienate dotal immovables.

4ccording to the 'nstitutes, the T elve Tables !rovided that the !ro!erty in the things sold and delivered did not !ass unless the !urchaser had !aid the !rice to the vendor, or satisfied him in some other ay, as by finding a third !arty ho !romises to !ay, or giving a !ledge. 'f the vendor relies on the credit of the !urchaser, the thing immediately becomes the !urchaser#s !ro!erty. 10(. (c) The transferor must intend to convey and the transferee must intend to ac&uire the o nershi! of the thing transferred. 3uch an intention e$ists hen and only hen, tradition takes !lace for some 0ust cause, i.e there is 0ust title (0ustus titulus). (()(). +ere tradition never transfers o nershi!, but only if sale or some 0ust cause !recedes, hich su!!lies the motive for the tradition. But the cause need not, as in the case of usuca!io, e$ist ob0ectively. 't is enough that it e$ists in the mind of the t o !arties. 108. (d) The transferor cannot give hat he has not got. ' cannot transfer something of hich ' am not the o ner. Besides, hen o nershi! is transferred it !asses to the transferee such as it as in the hands of the transferor? if for e$am!le, the land as burdened, it !asses sub0ect to the servitudes. 'f servitudes ere o ed to the land hich as transferred, it !asses to the transferee together ith the servitudes o ed to it, and son on so forth. 10+. (e) There must be a !hysical transfer of !ossession or something hich in la is e&uivalent. The old commentators distinguished traditio bet een real and fictitious. Real tradition meant an actual handling over of the thing, so that !ossession and o nershi! are simultaneously transferred. The term fictitious tradition includes various cases hich are a little out of the ordinary. There are four modes and in fact, there is nothing fictitious about them. They are% (i) traditio brevi manu (ii) constitutum !ossessorium (iii) traditio longa manu (iv) symbolical delivery (so-called)

10.. The $o)es: (i) Tra)itio &re%i man-% This takes !lace hen a !erson, ho is already in !ossession, but not as o ner, is to retain !ossession as o ner, e.g. ' have lent you a thing for use, no ' give it to you. +y intention to transfer o nershi! cou!led ith yours to ac&uire o nershi! converts the loan into and makes you o ner. #onstit-t-m possessori-m% This is the o!!osite !rocess. ' am in !ossession as o ner. ' ish to give to you as a !resent but ' still ant to kee! making use of it, and for this, ' am illing to !ay. 3o, ithout !hysical transfer, you become the o ner, hilst ' retain !ossession not as o ner but as hirer. (B$% 4n old man giving o nershi! of his house to his carer- yet retaining the sue of the house, ith or ithout !ayment.

(ii)

(iii) (iv)

Tra)itio lon!a man-% This takes !lace hen ' do not assume actual !hysical control, but in order to make a thing mine, it is !laced in my sight so that ' can take !ossession at !leasure ( hen ' ant). Bym&olical )eli%ery 5so<calle))% This takes !lace, hen for e$am!le, the keys of a house are given to me, hich act im!lies that the building and its content are deemed to !ass into my !ossession. There is nothing fictitious in this !rocess. Rather, the keys are the readiest means of !lacing the !erson to hom they are delivered in the e$clusive control of the house.

;(.. These methods of fictitious tradition ere the seeds of hat as later to develo! in ritten deeds of conveyance. This as the tradition !er cartam. 6ontem!oraneously, the !ractice gre u! of registering transfers of land in the a!!ro!riate offices.

5E9
111. 2onatio or Gift: 5onation or gift is an act of liberality (i.e. one does it out of his free choice) hich enriches the donee at the e$!ense of the donor. =nder this term, e find a number of different transactions, hich, if made for value and not gratuitously, are recognised as having each its o n s!ecial character. 3o hat is common in the transfers found under this mode of ac&uisition, is the gratuitous element. 2ifts are distinguished bet een? () 2ifts inter vivos ;) 2ifts mortis causa 7hen a gift takes the form of a transfer of o nershi! (as is often the case), it is usually effected by tradition. 11>. 2onatio Inter Ci%os% 5onations had certain limitations by abide. These related to? (a) the amount (b) the !ersons to hom they might be made (c) the circumstances in hich they might be revoked. hich they had to

11 . 5a9 6mo-nt% 4 le$ 6incia !rohibited gifts in e$cess of a certain amount e$ce!t hen the gifts ere going to a ide circle of relatives and some other !rivileged !ersons. This la did not render the !rohibited gift invalid, or even !enalise it. 'n fact the !raetor granted an e$ce!tio legis 6incia (an e$ce!tion). This e$ce!tion could be !leaded by the doner if the donee claimed the gift in court. The le$ 6incia had fallen into disuse before /ustinian, but as re!laced by legislation re&uiring registration in court of gifts in e$cess of ;.. solidi. ,ater /ustinian amended this to 8.. solidi. 4n unregistered gift in e$cess of this amount as void to the e$tent of the e$cess. 11". 5&9 Persons: The main restriction here as to !rohibit gifts bet een husband and ife. By an oratio of 6aracalla, this became valid hen the donee survived the donor and the doner at the time of his death ished the gift to take effect.

11(. 5c9 Re%ocation% 'n the classical !eriod, gifts given by !atrons to freedmen ere revocable at !leasure. =nder /ustinian, all gifts could be revoked on the ground of serious acts of ingratitude on the !art of the donee. Ge also added that gifts by !atrons to freedmen ere revocable if a child as born to the !atron, !rovided that he as childless at the time of the gift. 'f a gift as made ith a limitation or charge anne$ed to it, and the donee failed to give effect, the gift might be recalled. 118. 4nother !eculiarity of donations as the so-called beneficium com!etentiae. The donor could !lead this, if after having !romised to give something, he as sued. 'n this case, the la !rovided that the doner as not bound to give hat he !romised to the donee. The !ur!ose as to !revent the donor being ruined by his o n generosity, and also to !rotect the creditors. 11+. 2onatio $ortis #a-sa: This as a gift made in contem!lation of death either generally or because of a !articular illness or ha:ard (e.g. 'f ' die, you take my car). This failed to take effect if the donor survived the donee (i.e. you died before me). This kind of donation could be revoked inter vivos or by last ill, hich ho ever, could be e$!ressly renounced. 7hen the gift as !romised due to !articular condition (e$% due to an illness of the donor), the gift could be e$!ressed to o!erate either as a condition !recedent (sus!ensive), or as a condition subse&uent (resolutive). 'n the first, the !ro!erty did not !ass, unless and until the condition as realised. 'n the second case, it !assed immediately but might be reclaimed (or reverted) if the condition as not realised. 11.. Gifts mortis ca-sa an) le!acies: /ustinian says that gifts mortis causa are similar to legacies. 3imilarities% Both took effect in conse&uence of death. 'n general, !ersons ho could not make or take a legacy, could not make or take a gift mortis causa. Both ere !ost!oned to the claims of creditors (the creditors could take before) Both ere revocable The !rovisions of the le$ Dalcidia (E8)) !ermitting the heir to retain one-fourth against legacies as e$tended to donations mortis causa. 5ifferences% 4 legacy im!lies a ill and acce!tance of the inheritance by an instituted heir. 4 gift as more direct because it involved no heir.

5;9
111<118. 2os:

5os as a gift given by the ife to the husband as her contribution to ards the e$!enses of the 0oint establishment. 't as made by the ife or by another !erson on her behalf, usually before marriage and on the condition that the marriage takes !lace. 't could also be made or increased after marriage. 4 dos is either given, declared or !romised. These methods are distinguished as dotis datio, dotis dictio and dotis !romisso res!ectively. 5otis datio includes any mode of conveyance hich vested the !ro!erty in the husband. 5otis dictio as a verbal contract a!!licable only in s!ecial circumstances. 5otis !romisso as a !romise to constitute a dos. 'n the course of legal history, the notion of dos as !rofoundly changed. 7e may distinguish bet een three !eriods? (i) The !re-classical !eriod (ii) The classical !eriod (iii) /ustinian#s legislation (i) The Cre-classical !eriod% 'f the oman as sui 0uris and married in manus marriage, everything that belonged to her vested automatically in her husband and as absorbed in his estate. <nce vested in the husband, the dos remained his for all !ur!oses and for all time. Ge asn#t ans erable to it, and it was ne%er re%erte). The 6lassical Ceriod% 5ivorces and second marriages became increasingly fre&uent in the later Re!ublic. 6orres!ondingly, the idea gained ground that the dos should revert back to the ife hen the marriage as dissolved by divorce or by the husband#s death. This result as secured by sti!ulation (**;), defining the terms of restitution, enforced by a!!ro!riate action. 'n the absence of sti!ulation, the lady as given another action, hich enabled her to reclaim not the hole dos, but a good !ortion of it. 'n this action, the husband as not condemned to !ay beyond his ability to !ay. 'n the case of the ife#s death before the husband, her heirs could not reclaim the dos. 't is interesting to note hat ha!!ens hen the dos had been originally furnished by the ife#s father or !aternal ancestor. 'n the case of divorce, the dos returned not to the ife, but to her father if he as still alive. 'f he as dead, the dos remained ith the husband. 'n other ords, the ife could never take the dos that her father had forked out for her. 't either ent back to her father or else stayed at the husband. 'n !rinci!le, the husband as al ays the o ner of the dos, e$ce!t in the cases s!ecified above, here he as sub0ect to a duty of restitution. ,ater la came in vigore saying that dotal immovables could not be moved from 'taly ithout the ife#s consent. 'n the cases in hich the la re&uired the husband to restore the dos to the ife, he as still entitled to retain !art of it on the account of the children, the ife# misconduct and for necessary e$!enses. (iii) /ustinian#s ,egislation% By a constitution of 8E(, /ustinian further limited the husband# s !o er of dis!osition by !rohibiting the alienation or hy!othecation of dotal immovables where%er these were sit-ate)/ e%en

(ii)

with the wifeDs consent. By the same constitution, he fused the actions of sti!ulation and the other action mentioned above, but retaining most of their advantages. The reformed action as kno n as an actio e$ sti!ulato. The ife as given a tacit hy!othec (;-E) over all her husband#s dos to secure the restoration of the dos, and the husband had a similar hy!othec over the !ro!erty of the ife or her relations to ensure that the dos as assigned to him in terms of the marriage contract. The husband as liable to give com!ensation if dotal !ro!erty had been transferred ithout the ife# s consent, or damaged because of his failure to take good care of it as if it ere his o n. 4s regards the husband#s retention of !art of dos hen he as to restore to the ife, there ere no longer the retentions of the classical age (i.e. children, misconduct, e$!enses). Go ever, he could recover the necessary e$!enses, and useful e$!enses could be recovered in an actio mandati. 'f, as often ha!!ened, the movables ere !art of the dos, the husband as liable for the estimated value, and not for the s!ecific ob0ects. Ge as ans erable, hatever ha!!ened to the !ro!erty. The general result of /ustinian#s legislation as that the dos al ays returned to the donor or to the ife or he heirs e$ce!t that if the ife divorced her husband not for a !ermitted cause, she forfeited the dos for the benefit of the husband or of the husband and the children. Thus, e have seen that all through this long course of develo!ment, the husband as at first substantially and al ays formally the o ner of the dos. IC: ,at-ral $o)es of 6c7-isition: 1+ . 7e !ass mo to the modes of ac&uisition by natural la . The main modes are? 569 *cc-patio 5B9 Thesa-r-s 5#9 6ccessio 529 Bpecificatio 5E9 Perception an) Beparation of ;r-its

569
1+". *cc-patio% This means taking into !ossession of a res nullius o ner. The follo ing are the !rinci!al cases? 5i9 5ii9 5iii9 5i%9 5%9 ith the intention of becoming

ild beasts, birds and fish things taken from the enemy !recious stones, gems and things found on the sea-shore unoccu!ied islands in the sea res derelictae % things abandoned by their former o ner

1+(<1+8 5i9 Wil) &easts/ &ir)s an) fish: These became the !ro!erty of the ca!tor, hether taken on !ublic or on !rivate land, one#s o n or someone else#s. 'f you go on someone else#s land for the !ur!ose of hunting or fo ling, he may arn you off. 'f you !ersist, he might institute an action against you, but nevertheless, you ould still be the o ner of hat you take (ca!ture). Beasts and birds are distinguished as% naturally ild naturally tame This is a &uestion of the s!ecies to hich they belong. Thus e distinguish for e$am!le, bet een ild geese and tame geese. 6reatures ild by nature may in individual cases be more or less tamed or domesticated. 7ild beast and birds become yours hen you take them, and remain yours so long as they are under your control. They are deemed to be yours so long as they are under your sight and !ursuit is not difficult. The same a!!lies to bees. Bees are considered to be naturally ild creatures until they are s armed and you take them inside your house (you need to hive them). 'f the bees esca!e they still belong to the o ner as long as they are in his sight and !ursuit is not difficult. <ther ise, the bees ill belong to the first !erson ho hives them. Tamed beasts and birds are thus, those hich though naturally ild, have been tamed. Aote the distinction bet een beasts hich are naturally tame, and those hich have been tamed. 'f tamed beasts have ac&uired a habit of going a ay and coming back, they are deemed to be still yours as long they intend to come back. <ther ise, they belong to the first occu!ant. Tame animals (naturally) are o ned like any other !ro!erty. They remain yours, ho ever far afield they may go, and ho ever long, they choose to stay. 1++. 5ii9 Thin!s taEen from the enemy: These are said to become yours 0ure gentium. =sually, ho ever, enemy !ro!erty belongs to the con&uering state and is not ac&uired by individuals. This a!!lies to both land and booty. The booty as sometimes distributed amongst soldiers. 'f enemy !ro!erty ha!!ens to be in my !ossession at the outbreak of ar, ' can a!!ro!riate it to my o n use. (e$% you borro something from a 2reek and then ar breaks ith 2reece- you may kee! that thing). The rest: (iv) Crecious stones, gems and so forth, found on the seashore belong by natural la to the finder. (iv) 'f a ne island a!!ears on the sea, it belongs to the occu!ant as a res nullius. (more details on this hen e come to accessio). Res 5erelictae% 7hen a thing is abandoned, and someone else takes !ossession of it, it immediately becomes his. 4 thing is said to be abandoned hen an o ner thro s it a ay ith the intention of getting rid of it (he must have the animus that he doesn#t ant to retain the thing), ith the conse&uence that he immediately ceases to be the o ner. 7hen

(v)

someone finds a thing, he can become the o ner, !rovided that the o ner does not claim it back, and the !erson ho finds the thing has to identify from the circumstances hether the o ner has lost it or abandoned it. (for e$am!le if you find a diamond, you can be !retty sure that the o ner lost it and not abandoned it voluntarily.) This matter as usually sealed ith usuca!io. 4lso regarding res derelictae as the &uestion of uncultivated land (fields hich are not used). The Romans said that this land as a damage to the economy and the financial situation of the state. 'n the late em!ire there as a la hereby the state assured that a !erson ho occu!ied and orked a land, became the o ner of the land. This as easier than usuca!io.

5B9
111. Thesa-r-s: Treasure is defined as a movable ob0ect (not confined to money) hich is of value hich has been hidden for a great deal of time, such that the o ner ho has hid the treasure, no longer e$ists (or is unkno n). Thus the !erson ho finds the treasure becomes the o ner. Treasure is A<T a res derelictae- it has not been abandoned. This as different from the instance hen the o ner is kno n as in the case of !eo!le ho have stolen ob0ects and hidden them. There the ob0ects remain o ned by the o ner. Treasure though not a res derelictae, can be a res nullius- if the o ner has died. Ao , ho could claim the treasure as his@ There ere three !ossible claimants? (() the o ner of the soil in hich it as found (;) the finder (E) the fiscus (the city) The original norm as that ho found the treasure could o n int. 4ugustus had then said that the treasure belonged to the state. Aero then restores treasure back to !rivate citi:enshi!. 't as further modified by Bm!eror Gadrian, and the 'nstitutes follo the mode left by Gadrian. Ge said, that if a man found treasure on his o n land he might kee! it. The same ha!!ened if he found it in a sacred, religious or sanctioned !lace (e$% in the city alls or in a graveyard). 'f he found it by accident on someone else#s land, not by deliberate search, the treasure ent half to the finder, half to the o ner of the soil. 'f the treasure as found in a !lace hich is !ublic or belongs to the fiscus, half ent to the finder and the other half to the fiscus. 7ith the influence of the 6hristian 6hurch, there as another !rovision saying that the lando ner is not to have the treasure if he found it by magical rites.

5#9
1+.. 6ccessio:

This is the !rocess by hich a !rinci!al thing attaches to itself an accessory. Thus, the o ner of the !rinci!al thing becomes the o ner of the accessory. The !rinci!al thing may be an immovable or a movable. The accessory may have been !reviously o ned or uno ned (res nullius). The accession may have arisen by a natural !rocess, by a human agency, or both. 1.0. 'n the case of accession of a movable to a movable, the &uestion could be raised as to hich is the !rinci!al. =sually the ans er as obvious enough de!ending on the si:e and nature of the things involved. 4 hand added to a mutilated statue is an accessory. 'f the accessory as in this case could be detached, and through a force ma0eur, it as detached and it recovered its original character, it reverted to its original o nershi!. 3o if the hand !reviously belonged to me, then it as stuck to the statue, and later through the ind, the hand as detached again, then that hand retuned to my o nershi!. 'f the ind hadn#t se!arated them, then ' could file an action asking for it to be removed. 'f this as im!ossible, then ' could claim com!ensation. The 'nstitutes give many illustrations of accessio. They can be arranged under the follo ing headings. (a) (b) (c) (d) (e) (f) (g) natural increment alluvion islands in rivers building !lanting and so ing artificial accession mi$ing of solids and li&uids

1.1. 5a9 ,at-ral Increment: The o ner of the female !arent is the o ner of the offs!ring. The same a!!lies to the offs!ring of female slaves. 1.1. 5&9 6ll-%ion% 7hat a river adds to your land becomes yours by alluvion. 4lluvion means a slo increase hen the river slo ly through silt, soil etc, increases your !ro!erty. This !rocess has to be so slo that you can#t recall ho much has been added at any !articular moment in time. 'f then on the other hand, the violence of the river has carried a si:eable !iece of someone else#s land and added it to your o n, then that land still belongs to it !revious o ner. =nless of course, that !iece of land has been there for so long that it has adhered to your land, and the trees have stuck roots to it, then that land become yours. 4lluvion does not a!!ly to lands granted by the state and defined by boundaries. 1.>. 5c9 Islan)s in ri%ers% 4n island may come into e$istence in three ays. by the river diving its channel, creating a !iece of land bet een its t o arms if !art of the river is left dry hen an island forms on the ater#s surface. 'n the first case, there is no change of o nershi!. 'n the other t o cases, one needs to consider the !osition of the island in the stream and hether the ri!arian o ners have right of alluvion. 1. . /ustinian says that if the island is in the middle of the river, it belongs to the ri!arian o ners on the t o sides. 'f the island is found on one side or the other, it

belongs to the o ner of the corres!onding bank of the river. 'f the ri!arian o ners have no right of alluvion, then the island is a res nullius and belongs to the first occu!ant. 1.". 'f the river leaves its bed and flo s in a ne channel, then the old bed belongs to the ri!arian o ners in the same ay as an island formed in the middle of the river. The ne channel becomes !ublic like the river itself, 'n then the river shifts back to its old bed, the ne bed in turn belongs to the !ro!rietors of either bank. 1.(. 5)9 B-il)in!s: Aormally, if a man builds a house, he o ns the land and the material. But this is not al ays so. 4 for e$am!le, may build on his land ith B#s material. 4 may also build on B#s land ith 4#s material. 'n both cases, the result is the same. The building goes ith the land and is the !ro!erty of the o ner of the land. Go ever, there is no change in the o nershi! of the material. 7hile the building stands, ho ever, the o ner of the material may not re&uire it to be brought do n. 'f the building fell, he could claim his material back. The la allo ed the o ner of the material another alternative- to sue for the value of the material. 'f the material had been originally stolen from him, he could sue for double damages. 1.8. 'f a man builds u!on land hich he kno s does not belong to him, i.e. he !ossesses in bad faith, the 'nstitutes says that he loses the materials, because he is assumed to have !arted ith them by his o n volition. =nder /ustinian, if he as able to !rove that he had good faith, i.e. that he believed the land to belong to him, he could then recover the materials in case of demolition. Durther, in the later la , anyone ho had built on another land, even if he kne that it as not his, could remove the building if this did not cause damage to the !ro!erty. 1.+. 5e9 Plantin! an) sowin!: 'f ' ere to im!lant seeds in another man#s field, the cro!s or fruits ill belong to the other man ho o ns the soil !rovided that the seeds have struck roots. =ntil it has done so, there is no change of o nershi!. 4lso if my tree has driven its roots into someone else#s land, then that tree becomes his. 5f9 6rtificial accession% 7ritten characteristics, even though they may be gold letterings, are accessories to the !archment or !a!yrus on hich they are ritten. This, ho ever, does not a!!ly to !aintings. Gere, the contrary ha!!ens. 7hen one !aints on a ooden canvas belonging to someone else, he becomes the o ner of the canvas as ell. The canvas is an accessory to the !ainting. The !ainter, ho ever, has to !ay for the canvas. 5!9 $i3in! of soli)s an) li7-i)s % 7hen solids mi$, there ill be no change of o nershi!. 'f my shee! get mi$ed ith yours, the shee! ill remain mine. 'f li&uids are inse!arably mi$ed, so that one is absorbed in the other, it is a case of accessio. #ommi3tio is hen ob0ects are gathered together, but the o nershi! of their individuality remains. B$% ' have (8 bottles of ine, you have ;. bottles- e !lace them all in a ine rack. 6ommi$tio is hen there isn#t fusion (!hysically), but legally the things concerned are treated as one. 3o, in commi$tio, the things can be !hysically se!arated.

#onf-sio is hen t o se!arate things belonging to t o se!arate orders get united. They lose their individuality and become one thing, for e$am!le, having a mi$ture of ines. Gere, the situation is different from accessio. Bven though the ob0ect becomes one, o nershi! is still divided bet een all of the o ners ho o ned !art of the li&uid hich is mi$ed. The mi$ture is o ned in common in !ro!ortion to the value of the com!onent !arts.

529
1... Bpecificatio: This is the name given to the !rocess of bringing into e$istence a thing of a ne kind out of e$isting material (there is man#s ork involved). B$% ine out of gra!es, shi! out of timber, goblet out of gold. Ao ho has the o nershi! of the ne thing coming into e$istence@ The !erson ho o ned the original material later transformed into something else, or the !erson ho orked and transformed the material@ The 3abinians decided in favour of the o ner of the material, because ithout the material the !roduct could not have e$isted. The Croculians !referred the creator of the ne s!ecies. /ustinian ado!ted an intermediate !osition. 'f the !roduct could be reverted to its original state, there as no change of o nershi! (e$% the goblet could be melted into a lum! of gold). 'f not, the s!ecificator became the o ner (e$% the ine could not be turned into gra!es). 'n this case, therefore, s!ecificatio could be a mode of ac&uisition. 7hat if the material as stolen@ 'f the material as stolen, and someho ended u! in the hands of a orker ho transformed it ithout kno ing that the material as stolen, then he as the rightful o ner of the ob0ect.

5E9
100. Perception an) Beparation of ;r-its% 'n the term fruits, e include% the natural and !eriodic increment of the animal and vegetable kingdoms the !roducts of cultivated lands and gardens rents and similar !rofits derived from !ro!erty Gere, e are referring to fruits in the second sense. The o ner in !ossession of the land as entitled to the fruits because he as entitled to the land. There could be usufruct, hereby, a !erson though not the o ner of the land, had the right to en0oy the fruits of the land. There as also the &uestion of good faith or bad faith hen one as in !ossession of a land. 'f ' !ossess (not o n) an orchard (or a land) in good faith, then ' am the rightful o ner of the fruit. But if ' !ossess in bad faith, then the o ner can come and not only take the orchard ( hich belongs to him), but also demand a sum e&uivalent to the fruits hich ' have en0oyed during the time ' !ossessed the orchard. C. #ompetence to 6lienate:

11+. /ustinian considers some e$ce!tional cases in hich o ners may not alienate their o n !ro!erty. The t o most notable cases ere% the husband as forbidden to alienate dotal immovables the !u!illus as inca!able of alienating any !ro!erty hatsoever ithout the authority of his tutor. <ther cases ere hen in the later Bm!ire, minors could not alienate ithout the curator#s consent. 'nsane !ersons and !rodigals ere interdicted to act for themselves. 11.. 6ontrary to this, there ere also cases here a non-o ner could alienate. <ne such case as the mortgagee ho as em!o ered to sell his !ledge in order to realise his security. 4lso, tutors or curators had !o er ( ithin limits) to alienate the !ro!erty under their control. CI. 6c7-isition thro-!h 6!ents: 1>0. =nder Roman ,a , a !erson could ac&uire through agents. There classes of !ersons through hom e can ac&uire. These ere% 5a9 chil)ren an) sla%es in power 5&9 sla%es o%er whom one has -s-fr-ct 5c9 free men an) other personsD sla%es possesse) in !oo) faith 5)9 free a!ents 1>1. 5a9 #hil)ren an) sla%es in Power: (including !ersons in manus or manci!ium). =ntil the end of the re!ublic, it as deemed that a !erson in !o er could have nothing of his o n, and therefore anything that such a !erson ac&uired, vested automatically in his su!erior, even ithout his kno ledge or consent. Dor them to acce!t an inheritance or a legacy, ho ever, they had to have the consent of the !aterfamilias. ,ike o nershi!, !ossession ( ithout o nershi!) as ac&uired through !ersons in !o er. The latter as the case hen the slave or child made ac&uisitions ith the !eculium, hich the master allo ed him to retain. =nder the Bm!ire, the !rinci!le that the son ac&uired for the father as !rogressively narro ed. 1>1. 5&9 Bla%es hel) in -s-fr-ct: The rule as that hat the slaves ac&uired in the affairs of the usufructuary, or by letting their services to a third !arty, vested in the usufructuary. 7hat the slaves then ac&uired from other sources, ent to their o ners. Thus, if they ac&uired an inheritance or a legacy, that ould go for their o ner. 1>>. 5c9 ;ree men an) other personsD sla%es possesse) in !oo) faith % (i.e. ha%ing a man !hich you belie%e to be your sla%e !hen in fact his status is that of a free man# or else he is a sla%e but is not yours). The rule here is the same as in the last case. Things ac&uired in the t o above-mentioned cases ent to the !ossessor hilst things ac&uired from other sources, ent to the su!!osed slave if he as in fact free, or to his o ner if he as in fact a slave belonging to someone else. The same a!!lied to !ossession. 1> . 5)9 ;ree 6!ents% 4t first nothing could be ac&uired through an e$traneous !erson. ,ater, it as established that one could ac&uire through a free agent. (This# ho!e%er# !as not possible in the older forms of ci%il la! ac"uisition# namely ere four

mancipatio and in .ure cessio# for by these methods nobody could ac"uire e&cept the person ta'ing part in the ceremony.) 7ith a constitution of Bm!eror 3everus, one could ac&uire through an agent, not only if he kne of the ac&uisition but also if he didn#t. Ge could become o ner imme)iately if the !erson ho delivered the thing to the agent as the o ner, or else, by usuca!io or long time !ossession. CII. Ber%it-)es: 1>"<1>(. 6ll ser%it-)es ha%e certain thin!s in common% (a) They are real rights !rotected by a real action called the actio confessoria, hile another action called the actio negatoria, is available to the o ner of !ro!erty ho ishes to take active ste!s to challenge another !erson#s claim to servitude as regard the !ro!erty. (b) They are incor!oreal things and therefore, are the sub0ect of s!ecial rules as to creation, e$tinction and other res!ects. (c) They e$ist over the !ro!erty of another for the benefit of a thing or of a !erson. Therefore, in case of !raedial servitudes, the burden im!osed on one !ro!erty must be for the benefit attached to another !ro!erty. 4nd in the case of !ersonal servitudes, these last only for as long as the !erson in hose favour they are created, lives and retains his status. Cersonal servitudes are thus influenced by death or by ca!itis deminutio. 4lso, since they are !ersonal, they cannot be transferred to another !erson. CIII. Prae)ial 5Real9 Ber%it-)es: Craedial servitudes may be? Rustic =rban 1>8<1>+. R-stic Ber%it-)es% These are those servitudes a!!ertaining to the countryside, and satisfying the needs of agricultural and !asture land. The !rinci!al rustic servitudes are the right of !assage over another man#s land, either on foot, on horse or by cart. The latter led to the right to have a metalled track here the road turned. There as the right to lead ater over another man#s land. To the same head may also be added the right of !asture, of digging sand, of e$cavating and burning lime, on someone else#s land. There as also the negative right im!eding my neighbour not to dig ells on his land so as not to diminish my ater su!!lies. Rustic servitudes could come into e$istence by contract or through usuca!io, i.e. through the constant use of a !assage, ' ac&uire the right (res incor!orales) to use that !assage. 1>.. :r&an Ber%it-)es% These are those servitudes a!!ertaining to the city. The !rinci!al urban servitudes ere% my right to have a drain through your land serving my house servitude of su!!ort for a building my right to drive a balk of timber into my neighbour#s land right to discharge rain ater over a neighbour#s land

 right that rain ater shall not be received or discharged (in different circumstances
than the !revious e$am!le).

rights of light and vie my right to im!ede you from building or !lanting a tree in a ay that ould interfere ith my access of light my right to a !leasing and uninterru!ted vie (least recognised because it is not a
matter of necessity but a matter of delight)

5r. +ifsud Bonnici says that servitudes in urban tenements came from E sourcesater, light and alls. 'n fact, a look at the above list ill confirm this. 4s regards servitudes tied ith alls, he adds that hen you have the right to use your neighbour#s all, you have to !ay half of the e$!enses incurred in constructing the all. 1 1. 3o far it has been assumed that rustic servitudes are a!!urtenant to land, hilst urban servitudes are a!!urtenant to a house. >et this distinction is not al ays clear, for should e consider a right of ay a!!urtenant to a house as a rustic or an urban servitude@ There are various o!inions, as the te$ts give no consistent ans er to this &uestion. Aow Prae)ial Ber%it-)es were #reate) an) E3tin!-ishe): 1 1. Prae)ial ser%it-)es were create) &y si3 metho)s% (() (;) (E) (*) (8) (-) +anci!atio or 'n /ure 6essio Reservation Testament ,a!se of Time Fuasi HTradition 4d0udicatio

(() +anci!atio or 'n /ure 6essio% 'n the time of 2aius, rustic servitudes ere created by manci!ation or by in 0ure cessio, hilst urban servitudes ere created only by in 0ure cessio. These modes a!!lied to 'talian soil. The !act settled the term of the servitude. There ould be the !romise to give effect to it, often combined ith a !enalty for failure to do so. (;) Reservation% 4n o ner might alienate land on the condition that it servient to another of his lands. ould be

(E) Testament% ' might give a legacy of a servitude, thus charging the land in the hands of my heir, or give a legacy of the land ith reservation of a servitude, thus entitling my heir to its e$ercise? or finally, ' might leave the land to one !erson, and the servitude to another. (*) ,a!se of Time% 3ervitudes could not, strictly s!eaking be ac&uired by usuca!io because they did not admit of !hysical !ossession, but it seems that in the early la , there as no distinction bet een o nershi! and servitude, and thus servitudes could be ac&uired by usuca!io.

(8) Fuasi-Tradition% 'n the later em!ire, if the o ner of the land ac&uiesced (i.e. com!lied ithout !rotest), in the e$ercise of a servitude by a neighbour, the neighbour ac&uired the servitude by a kind of tradition. 'f a document recorded the transaction, the document ould in itself be sufficient to convey the right. (-) 4d0udicatio% 't as com!etent for a 0ude$ to declare a servitude in favour of any of the !arties in litigation. 1 >. Prae)ial Ber%it-)es were e3tin!-ishe) &y these fo-r metho)s: (() (;) (E) (*) 3urrender or Renunciation +erger (confusio) Aon-user for the statutory !eriod Term or condition

(() 3urrender or Renunciation% 'n the older la this as effected by in 0ure cessio, hilst in the later la , a servitude could be e$tinguished by mere agreement. (;) +erger (confusio)% 'f the o nershi! of both !ro!erties ended u! in the same hands, then the servitude as e$tinguished, for it asn#t !ossible to have a servitude over one#s o n land. (E) Aon-user for the statutory !eriod% The !eriod of use re&uired as the same as that re&uired for o nershi!? the !eriod varied as time ent by. (*) Term or condition% 4 servitude might come to an end by e$!iry of the time for hich it as constituted or by the effect of a resolutive condition. Gere, e see a de!arture from the general &uality of !er!etuity hich is a general characteristic of !raedial servitudes. IF: Personal Ber%it-)es: 1 . The !ersonal servitudes are% 519 519 5>9 5 9 :s-fr-ct :s-s Aa&itatio *perae Ber%-m

1 "<1 ". 519 :s-fr-ct% =sufruct as a ay ho to !ass the right to use and take fruits from another man#s !ro!erty ithout losing o nershi! and ithout diminishing the !ro!erty. The !erson giving the !ro!erty in usufruct as called the Audista because he o ns the !ro!erty but does not have use of it, hilst the !erson receiving is the usufructuary. 't is a right over a cor!oreal thing and if the thing disa!!ears, the right disa!!ears ith it as ell. Gence, there cannot be usufruct in things hich are consumed in their use, such as money. But a senatusconsultum allo ed a &uasiusufruct in such things, here the beneficiary as re&uired to give security for the

restoration of the e&uivalent u!on the determination of his interest. 'n fact, !rior to giving a !ro!erty in usufruct, the o ner had to include an inventory- a list of all the things that a!!ertained to him. 1 8. The usufructuary had all the rights of use and en0oyment, and of taking of fruits, but he must e$ercise the rights in a !ro!er manner. Thus the usufructuary of an agricultural land had to cultivate in the right ay and use the !ro!erty like the good father of a family. 4s e already said, fruits are not solely natural but can also be industrial benefits (e$ having a house in usufruct, and you use that house for rental !ur!oses, thus ac&uiring sums of money for yourself). 4 usufruct could not be alienated, i.e. the usufructuary could not convey his right and liability to a third !arty. >et, there as nothing hich could him from contracting ith another !erson to allo him to en0oy the benefit of the usufruct hether this as by ay of gift, hire or sale. 1 +. 519 :s-s% This as the right to use a !ro!erty ithout taking the fruits. Thus, thus usufructuary could occu!y a house ith his ife and family and could receive guests, but could not rent (lease) that house to rea! benefits from it. Ge could ho ever, take in a lodger !rovided that he as living there as ell. 1 .. 5>9 Aa&itatio% This as the right to use a house. 't has been doubted hether it is in fact a distinct servitude for it has similarities ith the above t o !ersonal servitudes. Gere, in )istinction from -s-s, the !erson ho had the title of habitatio could rent the house ithout living in it himself. 3o habitatio is a ty!e of usufruct and used for G<=3B3 <A,>. 't is obviously a !ersonal servitude. 1"0. 5 9 *perae Ber%-m% This as a right to use the services of slaves ithout taking the fruits (so it is scarcely distinguishable from usus). Aote% <!erae 3ervum and Gabitatio did not a!!ly to usufruct and usus. ere lost by non-user or ca!itis deminutio. This

Aow Personal Ber%it-)es were #reate) an) E3tin!-ishe): 1"1. #reation of Personal Ber%it-)es: Cersonal servitudes ere created by the same si$ methods as !raedial servitudes, namely, in 0ure cessio, reservation, testament, la!se of time, &uasi-tradition, and ad0udication. To these another is added? ()) 3tatute (lege), !articularly the bona adventicia hich the father en0oyed from his son, and the usufruct of one half hich he retained from emanci!ation (9I) 1"1. Personal Ber%it-)es were e3tin!-ishe) &y these metho)s% (() 3urrender or renunciation (see ;*E) (;) +erger (see ;*E) (E) Term or condition (see ;*E) (*) Aon-user for the statutory !eriod (see ;*E) J (8) 5estruction or substantial alteration of the sub0ect matter. 'f a house as burnt, usufruct as e$tinguished.

(-) 5eath or ca!itis deminutio. 'f for e$am!le, the usufruct as for ten years, and death came before the end of the term, death !ut an end to it. R-les relatin! to Ber%it-)es in !eneral: 1" . (() The use of the !raedial servitude must be granted to the land. 3o the utility is not bound by the !ersonal utility of the o ner. (;) The !raedial servitude is for an indefinite !eriod. There is a beginning but no end. Thus, the thing over hich a right is e$ercised must be ca!able of !er!etual duration. (E) The servitude is bound to the !ro!erty. (*) The o ner or those ho have a legitimate right can make the use of the servitude. (8) The servitude must al ays be to bear to something or to abstain from doing something, but ABKBR to do something. Thus, the servitude is !assive. (-) The o ner of a land can never have a right of servitude over his o n land. ()) The servitude is indivisible. (B$. >ou cannot build a !ro!erty in !assage because you ould be dividing the servitude.) (9) There cannot be a servitude of a servitude. (I) Remedies. The la gave for the !rotection of servitudes remedies the same or similar given for the !rotection of o nershi!. The actio confessoria asserting a servitude as kind of vindication. Dor the denial of a servitude, there as a corres!onding negative action (actio negatoria). F. *ther J-ra in Re 6liena: 4) Bm!hyteusis%