DERIVATIVE ACQUISITION

Mancipatio

Mancipatio was a formal method of transfer used for property falling into the category of res mancipi (see Chapter 4). It required the presence of five witnesses, plus a sixth person called a libripens who held a set of bronze scales.

We saw in Chapter 4 that the praetor developed protections for a person who had taken res mancipi without a formal transfer. For this reason, mancipatio as a form of transfer was obsolete even before the distinction between res mancipi and res nec mancipi was abolished by Justinian.

In iure cessio

As an alternative to mancipatio, transfer could be effected by a process known as in iure cessio. This involved the parties going before the praetor. The trans­feree would make a formal claim to the property to be transferred, which the transferor would decline to oppose. The praetor would then adjudge the property to be the transferee’s. Compared with mancipatio, this had the disadvantage of having to go before the praetor. For this reason, in iure cessio was typically used only for incorporeal property.

Traditio

The normal method of transfer of property was traditio, which is normally translated by the term “delivery”. This involved the transfer of possession from the transferor to the transferee, and was used both for moveable property and for land. This mode of transfer was received into Scots law for the transfer of moveable property, although its scope is now limited by the Sale of Goods Act 1979 to transfers other than those resulting from a sale (e.g.

The simplest form of delivery was an actual delivery into the transferee’s personal custody. The requirement was a transfer of possession. We saw in Chapter 4 that possession meant physical control of the property ac­companied by an intention to possess. As possession could be held through another, such as a slave, it was sufficient that delivery was made to someone acting on the transferee’s behalf.

Several other forms of delivery were recognised. For instance, delivery of the keys of the repository in which the property was kept was sufficient to give the transferee control and therefore possession of the goods. This method was known as traditio clavium (delivery of keys).

Valid delivery could be made where the transferor intended the property to belong to the first person who picked it up, this being called traditio incertae personae (delivery to an uncertain person). An example of this would be a politician seeking election throwing coins to a crowd. Whichever member of the crowd picked up a coin would become its owner.

Traditio longa manu was a valid form of delivery for property that was difficult or impossible to move. It involved the transferor pointing out the property to the transferee and permitting the latter to take possession. Thus, the jurists tell us that where the boundaries of land to be transferred are pointed out to the transferee from a tower on neighbouring land, that is valid delivery, even without the transferee actually entering into physical possession.

Because the point of traditio was a transfer of possession, there was no need for a physical transfer where the transferee already had physical custody

of the property. Thus, for example, where land was sold to a sitting tenant, the tenant became owner as soon as (with the transferor’s consent) he had the intention to possess the land as owner. This form of delivery was called traditio brevi manu. There was no need in such a case for the tenant or other holder to hand the property back to the owner in order for it to be re­delivered.

It has been noted that possession could be held through another.

“What I possess in my own name I can possess in that of another... I cease to possess and make the other person possessor through my agency. For it is one thing to possess and another to possess on someone else’s behalf; he is the possessor in whose name a thing is possessed; the procurator simply provides the agency of another’s possession.” (D.41.2.18pr)

An example would be where A sold land to B, but remained in occupation as a tenant. The scope of this constitutum possessorium, as it is called, is contro­versial. There is certainly sufficient in the texts to allow its recognition to be inferred, at least in some circumstances, but the name constitutum possessorium itself is a medieval invention and does not appear anywhere in the Roman sources. The problem with it is that it appears to undermine the require­ment for delivery. It would appear that constitutum possessorium was accepted as valid only where there was some proper legal ground for the retention of custody by the transferor, such as a lease.

lusta causa

It was said that delivery was valid only if there was some proper legal basis for the transfer of ownership. This was known as a iusta causa, or just cause, such as a sale or a gift. The nature of this requirement is not precisely clear, but it appears that its role was merely to provide “evidence of the parties’ intention that ownership should pass, [and] did not need to have an objective existence” (Metzger (ed), Companion to Justinian’s Institutes, p. 53). For this reason, it appears that ownership passed even if the parties were in disagree­ment as to the causa of the transfer:

“When we indeed agree on the thing delivered but differ over the grounds of delivery, I see no reason why the delivery should not be effective; an example would be that I think myself bound under a will to transfer land to you and you think that it is due under a stipula­tion.

In the examples given by Julian, ownership passes because the parties both intend it to pass. In the case where one party believes the money is a loan and the other a gift, both intend ownership to pass. The reason why there is such an intention in the case of a loan of money is that Roman law recog­nised two distinct types of loan. Where the loan was for consumption, as with money or food for example, ownership passed and the borrower was bound to return the value. In a loan for use, the same property was to be returned and ownership did not pass to the borrower. This matter is con­sidered further in Chapter 7.

If the parties disagreed on the causa of the transfer, it might be that the transfer could be challenged in court. Someone who received money believing it to be a gift where the other believed it to be a loan would be liable to return the money on the ground of unjustified enrichment (see Chapter 9). But until that was done, the transferee remained the owner. Such a transferee could, for example, transfer ownership to a third party. Such a third party, knowing nothing of the previous transaction, would acquire a right to the property which was entirely unchallengeable.