The Roman background

In Roman law the actio communi dividundo lay at the suit of any co-owner, whether or not he was in partnership with the other owners, to compel a division of the property held in common.

A fundamental principle, expressed in a constitution of AD 294, was that in communionem vel societatem nemo compellitur invitus deteneri: no one is to be compelled to remain as co-owner or partner against his will.⁶ The late classical jurist Paul also states that agreements between co-owners prohibiting partition have no force, although they may be valid if limited to a particular period of time.⁷ The action was directed primarily at the physical division of the property in question, land being by far the most common example. It was recognised that it might prove impossible to divide the land in such a way that each former co-owner received a portion of identical value. Hence provision was made by the action for the payment of compensation by an owner who had received more than his proper share to an owner who had received less.⁸ What does not seem to have been normally contemplated was that the land might be sold to a third party and the price divided between the co-owners in proportion to their interests. However, one passage in the Codex states that, as a last resort, the land might be sold to third parties in order to achieve a proper price, and that the former owners might then receive a portion of the proceeds.⁹

Although the actio communi dividundo was primarily a remedy to compel division of the property held in common, it also lay to rectify the consequences of mismanagement or other improper acts committed by any co-owner with respect to the property. Nor does it seem that actual division was necessary before such matters could be adjusted.

Digest texts speak generally of the actio communi dividundo lying to remedy loss incurred by one co-owner through another’s misdealing with the property. The late classical jurist Ulpian states generally that ‘in an action communi dividundo nothing is admitted save the division of the actual things which are owned in common and that of any damage caused or done to any of these things or of any loss or expenditure being incurred by one of the co-owners or of anything coming to his hands out of common property’.¹⁰ He also says that a co-owner by means of the action can recover a portion of any money he has legitimately spent on the property or of produce to which he is entitled¹¹ or of rent kept solely by another

⁶C.3.37.5. ⁷ D. 10.3.14.2.

⁸The procedural technicalities need not concern us here.

⁹C.3.37.3.1.

¹⁰D. 10.3.3 pr. (C. H. Monro (trans.), The Digest of Justinian, vol. II (Cambridge, 1909), 197).

¹¹H.t.4.3.

co-owner^{^[336]} or to compel some necessary repair.^{^[337]} Paul states that the action lies for damages where one co-owner has spoilt or damaged the property under circumstances that would normally give rise to an Aqui- lian action.^{^[338]}

The treatment of the actio communi dividundo in the Institutes of Justinian deserves to be mentioned because the relevant passages have sometimes been directly relied upon by the Scottish courts.

The Institutes discuss the actio communi dividundo not in the context of property but in that of obligations and actions. It mentions the action first under the head of quasi-contract. Where persons own property in common without being in partnership^{^[339]} and one is held to be liable to the other on the ground, for example, that he took all the fruits for himself, the obligation in question arises not from contract but from quasi-contract.^{^[340]} In the book on actions the role of the judge in the actio communi dividundo is examined. His primary duty is to allocate the property between the co-owners and, in so doing, to require anyone who has received property of greater value than the others to make to them an appropriate compensatory payment. Where the property is not readily divisible, the judge should award it all to one of the parties, condemning him to pay appropriate compensation to the others.^{^[341]}

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Source: Lewis A.D.E., Ibbetson D.J.. The Roman Law Tradition. Cambridge University Press,1994. — 234 p.. 1994

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The Roman background

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