OWNERSHIP

The nature of ownership

In Roman law and those systems based on it, ownership is recognised as absolute, a “distinct paramount right” (Metzger (ed), A Companion to Jus­tinian’s Institutes, p.

The rights of the owner

This is not to say that the rights of an owner are unrestricted. My right to use my property is restricted by my neighbour’s right to undisturbed enjoyment of his property. There may be rights affecting the property, possibly to the extent that I have no right to present enjoyment of the property. A lease or a usufruct, for example, will leave me with no present right to occupy the property. However, if and when those rights expire, I will be able to resume occupation.

Ownership has been defined as the ius utendi, fruendi, abutendi — the right of use, enjoyment and abuse. Normally, no one will have the right to use, enjoy or damage the property without deriving their right to do so from the owner.

Bonitary ownership

To the principle that ownership is absolute, there is one exception. As noted above, ownership of certain kinds of property (called res mancipi) could be transferred only by particular formal modes of conveyance. Any attempt to transfer ownership of res mancipi using another method would be unsuccess­ful, leaving the transferor as owner. However, such informal transfers were common, leading to the praetor giving protection to the transferee in such cases. These praetorian reforms left the transferor as owner according to the civil law, but gave remedies to the transferee equivalent to those of an owner. The view was eventually taken that the right of the transferee in such a case was a form of ownership. This right was called “bonitary ownership” because, although not the owner according to the civil law, the possessor had the property in bonis (“among his goods”). Only Gaius appears to have recognised this as a form of ownership, however.

The concept of bonitary ownership became redundant on Justinian’s abolition of the category of res mancipi, such property then being capable of transfer by the ordinary methods.