I OWNERSHIP

Ownership (dominium) in Roman law is difficult to define, and the Romans themselves did not trouble to do this. The best approach seems to be to deal with the main ingredients of ownership and from that allow the meaning of the term to emerge.

In particular, it is numporrr Io tee hew Roman maw de;·! 11 weth the: per­ennial peoblem of stolen goGols: movable dseoeety goSs ^0^. Olio ie is ssOd to on innycent buybr. Someooe hae So lose. AU legal sytSem s Cave to decide whether the loser should be the original owner or the i buyer. The choice hos serious imolieationsι on ffir ono nend, id is nnpom tant So peoteet exestinggreoeety rights; bin on On thhe o h erilyeiu Cego od faith are liable to lose their purchases, commerce may be adve affected.

i. Acquisition of ownership

The ways in which a person became owner of a thing can be dealt with here briefly. Exotic but without great practical importance were various ways in which ownership could be acquired ab initio, without a convey­ance: these methods included capture of an nnowned thing (such as a wild ammal or an inland which had hrieen in the nea); dee finding oa treasure; and the creation oa a new thing by the combination or trans- aormation oa existing things. There is an interesting discussion oa these various possibilities in the Digest, mainly taken arom Gaius (D.

But the usual way oa acquiring ownership, then as now, was by acqui­sition arom another person, namely the owner oa the thing. A proper conveyance oa the thing would transaer it arom the ownership oa one person to that oa another. For certain more valuable items known as res mancipi (in particular land, slaves and cattle) aormal conveyance by man­cipatio or in iure cessio was necessary in order to make the acquirer owner. The details are n nt in iporirni he re: the point waw samply thai h^i^atee roOi mality and publicity were appropriate aor conveyance oa the most v able iitsms d belidery (traditio).

It is aundamental that a person could not transaer a better title than he had lumseie: somce>odd wCh wae not the owner could out thcrefore make a person who acquired a thing arom him its owner. however, was io somm extort tudSaot to spoc i^l rcdes,.^usI; as is id today

Ownership in myncy wae rraneecraod e>d deludey. The naomct cmse would be, foo examd that if (ht owner hanarC over money os o lean (mutuum), ownership transaerred to the borrower. (This had to be so in the case oa lending money, since the idea oa the loan was not that pre­cisely the same coins should be returned but that they should be used, and the same value in other coins returned.)

Suppose, however, that the lender handed over somebody else's coins. This would not transaer ownership, and the owner oa the coins could thereaore claim the very same coins back (using the style='font-style:italic'>vindicatio, which is discussed below). So aar this is the ordinary rule aor property. The spe­ciality was that, ia the recipient oa the money spent it in good aaith, the acquirer became owner oa it.

The critical point is that commerce demands that money should be freely transferable and that there should be no need to make inquiries into whether the person handing over the money is actually its owner. In the cases just discussed only if the precise coins are still identifiable is the owner's title unaffected; otherwise it is safe to assume that the possessor is owner.

2. Use of property

The owner in Roman law was fairly uninhibited in the use of his prop­erty, although he might be subject to statutory restrictions (such as build­ing regulations or rules on humane treatment of slaves) as well as to restrictions imposed on the use of his land in the interests of his neigh­bours, whether by agreement or by the operation of law. These are dis­cussed in sections II and III below.

p. Protection of ownership

Ownership was protected by various different remedies. Before turning to the principal remedy by which it was protected, the vindicatio, we should note the relevance of two other actions. The first is the action for theft, by which the owner could recover damages from a person who stole his property. The second is the action under the lex Aquilia (of about 286 bc), by means of which the owner could recover damages from a person who wrongfully injured or killed his property. These were impor­tant weapons in the owner's armoury.

Nevertheless, the main action with which we are now concerned is the action by which the owner could recover his property from any person who had it, the vindicatio.

4. Possession and usucapio

This difficulty was avoided by relying on the concept of ‘possession'. There are two important points to make about possession, both quite lengthy.

(1) Possession was different from ownership because, while ownership was based on entitlement, ‘possession' was based on fact. A person who had a thing and intended to possess it was its possessor. He need not also be its owner. There is room for argument about exactly why the law chose to proteet the possessor. But th ere is one very good reason: tide best way of encouraging people to keep the peace and not to take th into their own hands is to protect the existing possessor, whether o he claims to be owner, until the facts have emerged properly in process.

The way in which possession was protected was by means of or called possessory interdicts. This was a ‘fast track' procedure un which tl^^ proeSer woffid adjudisate rn tht   of possesion. The

rules were stn^pp;: in caae: invel·rmg land, die r>rariar wruld grant pone session to the person who already had it, unless he had obtaine force or by stealth from, or with the permission of, the other party. of those exceptions applied, that other party would obtain possess The ndes foo cacas ³ïººÍí^ (^óðÍ: propertp differed in only one respectipossession was granted to the party who had had the thi the longer period during the immediately preceding year.

The procedure was simple and swift in the sense that it did no looking at the rights and wrongs of title and how it had been a All it needed was an examination of the position between the t gating partiesihad one of them, for example, taken the thing from other by force? If so. lie must restrire ot to him. Tim residt oP this inquiry was correspondingly limitedithe praetor could conclude only that party had a better right than the other, but that said nothing abo absolute rights. There might be a lot of people who had even rights than either of them. tut this procedure rapidly resolved the tion which of the two had a better claim to possess and so kept between them.

snterdict proceedings therefore provided one way of avoiding inconvenience dO proving oτoership m ffid mndicatio. Sf you could prove that the person who had a thing had acquired it from you, for e only wilh yoou p ermission (and no hod no rihO so het i^hn^^lf up as having any right competing with yours), interdict proceedings would be adequate to recover possession from that person. Gaius emphasizes that it is always worth considering whether there is any interdict under which you can recover possession: if you suct^^^d, dou transfer to the other party ilie lunch hecvlcr Orr^n of briyginn g vindicatio and ilie need to prove owmediip (D. 6.1.24).

(2) Usucapio was a means (as mentioned already) by which a non-owner could become owner of a thing, by possessing it for a certain period. For movables the period was one year, for land it was two.

To become owner by usucapio, a possessor had to meet certain condi­tions: first, he must possess; second, he must begin (though he need not complete) his possession in good faith; third, he must have a good cause for being in possession; and finally, he must remain in possession for the relevant period.

The existence of usucapio simplified the owner's task in vindicatio. Instead of needing to prove a series of owners and conveyances from time immemorial, he could rely on proving only that he had possessed for the necessary period under a possession which had begun in good faith for a good cause.

Usucapio meant that the acquirer of the property was enriched at the expense of the oeiginfl ownfr:Cust as sh t pa—mg nf the ooe on twr yeaop vested ownership in the new owner, so it divested the old one. This s unfair. But io this ShoiurisCs hah abeF onswfne: usucapio was in thh p ublic interest, so that ownership of property should not be uncertain for long or virtually always open to challenge, and so that there shoul some end to titie^^^ie^:n (Gaias, D. 41.3.1; Neratius, D. 41.10.5). These seem good points.

In fact, it is not quite clear that usucapio, at least of movable property, can have had this beneficial effect of clarifying titles and rendering them unchallengeable. The reason for this is that Roman law insisted on one restriction: there could be nn ueucapio of a esooen o bject, nno ju su by the thief (of course) but by anyone at all. This restriction goes back Twelve Tibfe {c. 450 bc). But 11os meom shah at is lil«·^· thyt etucapio of movable psop-oPy wws nathet uncommen: mmtfy whwn moveblr [irop- erty ends up being sold or acquired by a non-owner it will at so in its history have been stolen.

In Rome, if usucapio was completed, the title of the possessor became unassailable. But ultimately the Roman preference was for protection of the exissinn title: bceorr usucapio was completed, the possessor in good faith hhd n o dedende against the 01X160. Even after it had be en thought to ie compleeed, if the swobo detected x rtokn thmg m the hands of a purchaser in good eaitd, he eoulh slill stalm ft back ae S^ikps^Party The fact ihet it Itah at aams pment hirn eexten wouIO prruent the pnrchetea relying an usucapio. That wonld le ave the [euobr cea wfth only o tontsacs tual aham far damapdg agama the teRer; and ft tde fenes was hiaTalf the thief, such a claim would not be worth much in practice. Thi hard its find; when they are found, they find it hard to find any money.

y. Other titles to property

The topic of usucapio leads naturally into the question of other titles to property. The Romans were strict in saying that there was only one form of ownership, dominium. But in fact they created other statuses which were well protected, although they lacked the formal title of ownership.

(1) A person who acquired a thing in good faith from somebody who was not the owner was not himself the owner either, since a non-owner could not transfer ownership to him. But such a person, a bona fide pos­sessor, was worthy of protection by the law, since he had no reason to doubt the validity of his own title to the thing. Put delphically, the good faith of the possessor in good faith consists in thinking that he is not a possessor in good faith but the owner.

By usucapio a bona fide possessor would become full owner in either one or two years. But, until the period for usucapio had run, he faced a difficulty in recovering the property if he lost possession of it. It is true that, since he was a possessor, he was protected by possessory interdicts. But he might not find any interdict of use in his casebfor instance, if had not lost possession by force, stealth or permission or (in the c movables) if he haa b ecu out of hostrssion for o sigdificant period. Nor could he use the normal action for recovery of property (vindication, since this required proof of ownership, something which the bona fide pos­sessor could not satisfy.

The solution was to provide the bona fide possessor with a modified version of the vindicatio, known as the actio Publiciana. This appears to have been introduced in the last century of the republic, possibly in 67 bc. Why precisely then is a question which cannot be answered, just as it remains uncertain whether the primary purpose of this innovation was

to meet the difficulties of the bona fide possessor or the rather different ones faced by the bonitary owner (see below; Jolowicz and Nicholas 1972: 164-6). The special feature of the actio Publiciana consisted in asking the judge to decide not whether the plaintiff was owner now (which he was not) but whether after the period of usucapio he would be. That meant that the judge must hear evidence on the requirements of usucapio other than 1 he period o f ppssession: did the pl pintiff acquire possession in good faith? Did he have a good cause for possession? He would also, if this issue was raised by the defendant, have to consider whether the thing had been stolen. A person who had purchased the object in good faith from a non-owner would be able to satisfy those requirements, so the judge would be entitled to conclude that he should succeed in the claim; always provided, of course, that the object had not been stolen.

It is appropriate here to point out one more concession made to the bona fide pessessof: this was tOtht, if fiih ðܳºñà he sessep bode fourt (whether literally, or in the form of the young of animals), the fibdoen possessor became its owner by the very fact of its separation from the parent. Even if the bona fide possessor was successfully sued for return of the parent object, in classical law there was no obligation to hand over its fruits. The precise reason for this rule is not very clear. In some cases, such as that of crops, it is plausible to say that the rule protects the bona fide possessor’s labour or investment. But in others (animals) it can only be said to be protecting his reasonable expectations. Paul puts it very broadly: the bona fide possessor is protected because he is more or less in the position of the owner (D. 41.1.48). In any event, this rule is a further pointer to the fact that bona fide possession was a status with significant rights and significant legal protection.

(2) For completeness, it should be noted that the actio Publiciana was also available to another person whose standing fell short of complete ownership or dominium, namely a person who acquired a thing which required formal conveyance (a res mancipi) from the owner but received it oj^:^ bb an mformal sonveyanse: the bomtary rwuer. Smce ownership passed in such things only by formal conveyance, the recipient wa owner. But, equally clearly, as an acquirer directly from the owner, deserved leggl peutertion: Sc nnieh ºî, ihni st if ctms mo actio Ð̳ñ³àø³ proceedings between the bonitary owner and the owner, the boni owner would succeed.

The actio Publlcc-ana required sUgh^y Icss to ft proved, do st it at se att conceivable that even full owners might have chosen to use it the main difficulty - that, owing to the exclusion of stolen goods from usucapio, a plaintiff may always have harboured a slight doubt about whether something was really his own — was a difficulty regardless whether proceedings were raised by vindicatio or by the actio Publiciana.

6. Some conclusions

All this may seem ve ry I u'lnuc^l; what do es it ali a del up to for the pur - poses of the hittoriad? Thehe are two mala doinrr.

(1)   A good deal of importance was attached to possession rather than ownership. hhe remedies by which any possession, and in particular that of the possessor in good faith and bonitary owner, was protected were potent. hhis indicates that Roman law was seriously concerned with preservation of the status quo and keeping the peace, and less so with questions of formal entitlement. It is true, of course, that the Romans insisted on formal conveyance for certain objects, and that ownership in these things could otherwise not pass. But at the same time they were prepared to innovate so as to make the difference between those types of conveyance nugatory. Gaius himself spoke of a double system of own­ership at Rome (Inst., 1.54); the amalgamation of the two nearly four cen­turies later was long overdue. hhe emphasis in developed Roman property law was often therefore not really on who was the owner, but on who was entitled to the protection of possessory remedies and the actio Publiciana.

In other respects too the position of the bonitary owner and bona fide possessor was satssfaytority p rrtectcd: seetion III de ale '^itw remediet be which an owner could protect himself in relation to his neighbou is likely that all or most of these were also open to bonitary o although the position in relation to possessors is not always so (Bonfante 1926: 345—6, 380, 409, 448—9). Certainly, the actions for theft of the property and for wrongful damage to it were open to both of these people.

(2)   None the less, when faced with a choice between protecting an innocent owner and an innocent possessor in good faith, Roman law opted to protect the owner. And, although usucapio meant that ownership of property theoretically did not remain uncertain for long, this was less than the whole truth given the exclusion from usucapio of stolen goods. hhis seems to suggest that — with the exception of money, for which special rules were necessarily developed in the interests of commerce - the Romans were relatively unconcerned about the effect of their prop-

61 erty rules on commercial transactions. The position is likely to have been mitigated, however, by the difficulty of proving a theft many years after it had taken place.