CASE 114: Through Whom Do We Acquire?

Gaius, Institutiones 2.86-87

(87)     Igitur liberi nostri quos in potestate habemus, item quod servi nostri mancipio accipiunt vel ex traditione nanciscuntur, sive quid stipulentur, vel ex ali­qualibet causa adquirunt, id nobis adquiritur; ipse enim, qui in potestate nostra est, nihil suum habere potest.

(Gaius in the second book of his Institutes)

(86)     Moreover, we acquire (ownership of property) not only through ourselves

but also through those whom we have in our potestas, manus, or charge (man­cipium). The same is true for those slaves whose usufruct we have, as well as for free persons and slaves belonging to others if we possess them in good faith....................................................................................

(87)      So whatever our children-in-power and slaves take through formal con­veyance or handover, or whatever they stipulate for or acquire on any basis whatsoever, becomes our property.

For this reason, if he (our son-in-power or slave) is appointed heir (by a third party), he cannot accept the inheritance unless we order him to do so, and if he accepts an inheritance upon our order, the inheritance becomes our prop­erty just as if we had been appointed heirs ourselves. In consequence, a legacy of course also accrues to us through them.

1.      The Household Circle. In section 86 Gaius attempts an exhaustive list of the persons through whom a pater familias can acquire property. They fall into two broad classes. The first class consists of free family members, of which natural descendants (but also adopted children; see below, Part C.2) are the major examples; but the class also includes a wife in manus (Chapter II.C.1; virtually obsolete in classical law) and free persons held in a state of civil bondage called mancipium (see the introduction to section 4 below). The sec­ond class consists of the slaves of the pater familias, including not only his own slaves (held in his potestas) but also slaves who are owned by a third party but whose labor he profits from under a property arrangement called usufruct. Finally, and by analogy (as it seems), the head of the household also acquires through persons (whether actually freemen or slaves belonging to another) whom he holds in the honest but mistaken belief that they are his own slaves; the freeman may successfully assert his free status, or the true owner may reclaim the slave, but in the meantime the holder in good faith can acquire through them. Despite the complexity of these various classes (some of which were controversial among the jurists), the two essential groups are the children and the slaves of the pater familias.

2.      Agency? Agency is a legal relationship in which one person acts for or repre­sents another by the latter's authority. In its most fully developed form, the agent becomes effectively an extension of the principal, who alone acquires legal rights and duties as a result of the agents transaction.

3.      Three Kinds of Acquisition. Papinian mentions three distinct ways in which the pater familias can acquire. The first is mancipation, a formal ceremony whereby the ownership of property of certain kinds (res mancipi: principally land, slaves, and large farm animals) is transferred from one person to an­other. The second is physical handover (traditio), whereby the possession of property is transferred; in the case of property other than res mancipi, han­dover also usually transfers ownership if this is what the parties intend. The third is stipulation, whereby one person (called in Roman usage the stipula­tor) receives another person's formal promise that he or she will act, usually to the stipulators benefit; see further Case 117. Thus, a pater familias can ac­quire both property and contractual claims through his children and slaves.

4.      Acquiring and Owning. The persons who acquire for another cannot own property of their own. Is this necessarily true? Consider the following exam­ple: A son-in-power, while plowing his fathers field, uncovers a treasure trove buried long ago by an unknown party Does his pater acquire the treasure? See Tryphoninus, D.

5.      Bequests. The last portion of this Case deals with a situation in which a third party dies and leaves his or her estate, or a legacy from that estate, to someone else's child-in-power or slave. This seems to have been common; why might it have occurred? Gaius indicates that the heir or legatee is allowed to “ap­proach” (adire; i.e., accept) the bequest only after receiving the “order” (ius- sum) of the paterfamilias (see also Tit. Ulp. 19.19). The bequest then becomes the property of the pater. Why must the child-in-power receive the permis­sion of the pater? As we shall see (in Case 116), a fathers knowledge, at least, may also be required in the case of other acquisitions; but inheritances are ar­guably more delicate. Why?