Chapter Summary
This chapter has mostly focused on two conceptual distinctions, both of which are characteristic of systems of property law drawing on Roman law, and both of which have been adopted in Scots law.
The first of these is the distinction between real rights and personal rights. This is the distinction ‘between owning and being owed something'.[1021] Ownership is a real right, and to say that I own something is to say that it is mine; to say that it is mine is to say that I have a right enforceable against the whole world. I can therefore recover the property from any person into whose hands it comes, even if that person is in the most complete good faith. By contrast, if I enter into a contract to sell the thing to you then, until ownership is transferred to you, you have a personal right, enforceable against me but nobody else. As a result, if I sell the thing to someone else, I may be liable to you for breaching our contract, but you will not normally have any remedy against the acquirer of the property.
The other distinction is that between ownership and possession. To own something is to have a right to it; to possess it is, in simple terms, merely to have it. A person can only become owner in one of a limited number of ways, mostly by acquiring the property from a previous owner. A person can become a possessor simply by taking control of the property with the appropriate state of mind, regardless of entitlement. In the owner there resides the ultimate right to the property. The possessor may be protected against dispossession, but normally only against the immediate dispossessor and only as an interim remedy until the question of ownership is considered. This fundamental distinction exists also in modern Scots law, although the procedural details differ substantially.
Further Reading
G.4.139-70
J.4.6, 15
D.41.1-2; 43.16-18, 31
C.3.32, 37-9, 42; 4.52; 7.32; 8.4, 6
W W Buckland, A Text-Book of Roman Law from Augustus to Justinian 3rd edn, revd P Stein (Cambridge University Press 1963) 180-204
H Hausmaninger and R Gamauf, A Casebook on Roman Property Law (G A Sheets trans, Oxford University Press 2012) chapters I-IV
D Johnston, Roman Law in Context (Cambridge University Press 1999) chapter 4
E Metzger ed, A Companion to Justinian’s Institutes (Duckworth 1998) 42-9
J A C Thomas, Textbook of Roman Law (North-Holland 1976) chapters X and XI
A Watson, The Law of Property in the Later Roman Republic (Oxford University Press 1968) chapters 1, 3-7 and 10