Recovery of Property
(1) The Choice: Recovery Based on Ownership or Recovery Based on Possession
In, probably, 69 BC, the orator Cicero appeared as an advocate in a case on behalf of a client named Caecina.[976] The background to this case was a dispute over a farm.
The farm had been held on usufruct by a lady named Caesen- nia.[977] On the death of the owner (Caesennia's son), the farm had been acquired at auction by Caesennia's friend Aebutius. Caesennia then died. Caecina was Caesennia's husband. He claimed that Aebutius had acquired the farm on her behalf, and that therefore it belonged to Caecina as her heir. By contrast, Aebutius took the position that he had acquired the farm for himself. Aebutius excluded Caecina from possession of the land, whereupon Caecina initiated proceedings for its recovery.The ultimate dispute was over ownership of the land. Caecina, however, chose to proceed on the basis of possession only (by means of the interdict de vi armata). Why might he have done this? After all, he could have proceeded straight to raising an action based on ownership. Proof of ownership would have the benefit of conclusively settling the dispute, whereas the possessory remedies gave interim protection only. It is impossible to say why this route was chosen in a parÂticular case. However, the possessory remedies did have two major advantages. First, it was easier to satisfy their requirements: the remedy was based simply on proof of possession, without having to establish any kind of right in the property. This would be particularly attractive where, as in Caecina's case, the question of ownership raised difficult issues and was genuinely open to dispute. Second, even though it did not give a final resolution to the issue, it was advantageous to be the party in possession, as that put the burden on the other party to prove ownership.
In addition, in the particular circumstances of a case, it might be advantageous at least to get interim possession. For example, a farmer engaged in a dispute might value at least having possession long enough to complete the harvest, even if he ultimately lost on the question of ownership. Much the same is true in Scots law and other systems of property law based on Roman law, where the same prinÂciple applies, although not the specific procedural form of possessory protection. In Scots law, the remedies of spuilzie (for moveables) and ejection and intrusion(for land)[978] were developed. These were influenced by Roman law: the instituÂtional writer Bankton says that they âcome in place of' the Roman remedies,[979] and the institutional writers make regular reference to Roman sources in discussÂing them.[980] They also have native antecedents, however,[981] and canon law influÂence has also been suggested.[982]
(2) Recovery Based on Possession
Justinian presents the possessory remedies as the preliminary stage in a dispute over ownership, determining who should have interim possession until that disÂpute is resolved. As he says, âboth law and reason require that one possess and the other seek possession'.[983] However, it was not in fact necessary to go through this stage, and it would be pointless to seek possessory protection if it was clear that you would lose.
Possessory protection was given by means of interdicts, which were in origin orders by the praetor that something should be done or not done. In the classical law, once the praetor had issued the interdict, a judge[984] would consider whether either party was in breach of the requirements of the interdict.[985]
The interdicts were classified as being for obtaining, for retaining or for recovÂering possession.[986] The first of those classes, though, is not really possessory in the sense used here, as it is not concerned with protecting an existing or recently disturbed possession.
Instead, interdicts falling into this class are concerned with the acquisition of possession for the first time.[987] Even leaving these aside, though, the classification is not perfect: as we shall see, interdicts classed as being for retaining possession could sometimes be used to recover possession.[988](a) Uti Possidetis
For the protection of possession of land, the interdict uti possidetis was used. By this interdict, interim possession was awarded to the current possessor, unless he or she acquired possession from the other party by force, stealth or licence,[989] in Latin vi, clam aut precario. The final word, usually translated âlicenceâ, is a reference to the arrangement known as precarium, described above.
For example, suppose that Decimus is in possession of a farm. Publius forcibly drives Decimus out of the farm and takes up possession himself. Decimus can recover possession using the interdict uti possidetis, even though Publius is the one in possession, as Publius took possession from him by force. This is the case even if Publius is in fact owner of the farm: possessory proceedings are not concerned with the ultimate question of who owns the property, but only with the issue of who should have possession in the meantime.
The interdict could only be used against the immediate dispossessor, and so possession obtained by force, stealth or licence from a third party could still be protected by it.[990] For example, in the situation given in the previous paragraph, suppose that Publius is himself forcibly dispossessed by Servius. Decimus will not be able to use the interdict against Servius. An action based on ownership will be his only option.
(b) Utrubi
The interdict utrubi was used for the protection of possession of moveable propÂerty. In classical law, possession would be awarded to the party who had had posÂsession for longer in the previous year. You could add to your period of possession the possession of anyone from whom you acquired the property by voluntary transfer or as their heir.[991] For example, if Tullia had possession for three months, then sold to Septimus, who possessed for a further four months, Septimus would be counted as having possessed for the full seven months that they possessed between them.
Possession before the previous year did not count.[992] Therefore, where Lucius possessed for eight months and then Titus possessed for the followÂing seven months, Titus would be successful in utrubi as the first three months of Titusâ possession were more than a year previouslyPossession acquired by force, stealth or licence from the other party did not count.[993] Thus, for example, suppose that Quintus has had possession of a horse for five months. Claudia sneaks into its stable in the night and removes it. She then possesses it for the next seven months. In proceedings for the interdict utrubi, Quintus will be successful. Even though Claudia has had possession for longer, her possession does not count as she acquired possession from Quintus by stealth.
This position changed, and in the law stated by Justinian utrubi worked in the same way as uti possidetis.[994] In other words, the winner in the interdict proceedÂings would be the current possessor, unless that party got possession from the other by force, stealth or licence.
(c) De Vi/De Vi Armata
Another option for a person dispossessed of land was one of the interdicts de vi,[995] which were concerned with dispossession by force. In classical law, there were two forms of these: the simple interdict de vi, sometimes called the interdict de vi cottidiana (âconcerning everyday force'); and the interdict de vi armata, which was concerned with armed force.
The interdict de vi cottidiana allowed a possessor, who had been ejected by force, to be restored to possession, as long as proceedings were begun within a year. The interdict was not available to a person who held by force, stealth or licence from the ejector.[996] In post-classical law, it was provided that, in addition to restoring possession, the ejector forfeited ownership (if owner) or had to pay the value (if not owner).[997]
The interdict de vi armata was available where armed force had been used.
âArmed force' included not just the case where actual weapons were used, but also sticks and stones.[998] The interdict de vi armata was available even when the dispossessed party had held by force, stealth or licence from the ejector, and did not have the one-year time limit.The interdicts de vi cottidiana and de vi armata seem later to have undergone a merger, andJustinian presents a single interdict for restoration of possession taken by force, regardless of whether possession was acquired by the dispossessed person by force, stealth or licence.[999] This was in addition to the forfeiture of ownership or payment of value mentioned above.
(3) Recovery Based on Ownership
(a) Vindication and Other Remedies
The standard remedy for recovery of property by an owner was the rei vindicatio, or âvindication'. Where the party claiming the property was successful in proving ownership, the possessor would be ordered to yield up the property as well as any fruits obtained from it,[1000] unless there was some defence available.[1001] Good faith was not a defence (except with respect to fruits), as we have seen. However, if, for example, the party in occupation was able to show that he or she had some other real right in the property, that would be a defence. For instance, if the occupier had a usufruct in the property, that would entitle the occupier to carry on in occupation of the property. The obligation to hand over the fruits of the property included any fruits that might have been acquired through proper management of the property.[1002] If the possessor had given up the property, obviously he or she could not be compelled to hand it over. If the property had been disposed of in good faith, there would be no liability. However, if the possessor had disposed of the property fraudulently, he or she would be liable as if still in possession,[1003] essentially meaning liability to pay the value of the property.[1004]
Another action that was available was the actio ad exhibendum, the âaction for production'.
This was an action to have someone compelled to produce something in court, and was mainly introduced as a preliminary step to an action for vindicaÂtion.[1005] However, it could be used for other actions as well, so it was not necessary in the actio ad exhibendum to claim or prove ownership.[1006] It was only necessary to have a relevant interest in the property to be produced, although where the line was drawn between relevant and irrelevant interests was not entirely clear.[1007]One further point should be mentioned here for completeness when considÂering an owner's options in recovering his or her property. Where the property was moveable and had been stolen,[1008] the owner could sue the thief for theft, as an alternative or in addition to vindication. The action for theft was a personal action based on the thief 's own wrongdoing, and so in principle it was only availÂable against the thief personally.[1009]
(b) Proof of Ownership
When the case came to trial, the judge would hear the evidence and the speeches on either side, and then reach a decision on the question of ownership.[1010] In practice, because simply being in possession gave of itself no right to the property (beyond the interim protection given by the possessory interdicts), that would mean that the judge would have to be satisfied that the person asserting ownerÂship had acquired ownership in one of the recognised ways.[1011]
In contrast with modern law, though, in which there are detailed rules of evidence governing the process of truth-finding, Roman law had a relatively undeveloped law of evidence. The judge had a comparatively free hand in this matter. It was, though, accepted that it was up to the person asserting a fact to prove it.[1012] The effect of this was that the party raising the action would bear the overall burden of proof, while any specific defence raised by the other party would be for him or her to prove.[1013] What we do not see much of is discussion of how much evidence must be brought to satisfy that burden of proof. This raises a genuine difficulty, because, as we shall see in Chapter 11, normally it was not possible to acquire ownership without getting it from a previous owner.[1014] Thus, if I buy property from you, I can only become owner if you were owner. But you were only owner if you yourself got the property from a previous owner. The same is true of that previous owner, and so on, right back to when the property first came into existence or was ownerless property acquired for the first time. In practice, therefore, it is likely that a similar approach would be taken to that of modern law, and that the challenger would normally need to show that he or she had once had the property, or at least some kind of entitlement to it, and that the property had come to the current possessor in a manner inconsistent with the acquisition of ownership.[1015] An example would be the property having been stolen from me, regardless of whether you were aware of the theft when you subsequently acquired the property.
F.