A. Traditio

CASE 67

D 41.1.20 pr. (Ulpianus libro vicensimo nono ad Sabinum)

Traditio nihil amplius transferre debet vel potest ad eum qui accipit, quam est apud eum qui tradit.

Translation: (Ulpian in the 29th book of his Commentary on the Ius Civile of Sabinus)^[146]

The act of traditio should not transfer more to the transferee than the transferor has, nor does it. Therefore if someone has ownership in a piece of land, he transfers it through traditio; if he does not have it, he transfers nothing to the transferee.

Discussion Questions:

1)      Do you think the text originally concerned mancipatio and has been changed by Justinian? Compare Gaius Inst. 2.22: mancipi vero res sunt, quae per manci­pationem ad alium transferuntur... (“res mancipi are things that are transferred to another by means of mancipatio”).

2)    Is at least possession transferred by the non-owner?

3)    Can every owner transfer his property with legal effect?

4)      Smith tells Jones to sell a book of Smith's for 100. Jones sells the book to Brown for 80 and delivers it to him. Has Brown acquired ownership?

Compare with this Case:

D 50.17.54 (Ulpianus libro quadragensimo sexto ad edictum)

Nemo plus iuris ad alium transferre potest quam ipse haberet.

Translation: (Ulpian in the 46th book of his Commentary on the Praetor’s Edict)

No one can transfer to another a greater right than he himself has.

§ 442 Austrian Civil Code:

...

§ 367 Austrian Civil Code:

The ownership suit for movable property does not lie against the reasonable pos­sessor, if he proves that he acquired the property either in a public auction, or from a merchant authorized to engage in this business, or as compensation from some­one to whom the plaintiff himself entrusted the property for use, for safekeeping, or for any other purpose. In these cases the ownership will have been acquired by the reasonable possessor, and to the former owner there is available only the right of indemnification against that party who is answerable to him for the loss.^[148]

D 39.5.25 (lavolenus libro sexto epistularum)

Si tibi dederim rem, ut Titio meo nomine donares, et tu tuo nomine eam ei dederis, an fac­tam eius putes? Respondit, si rem tibi dederim, ut Titio meo nomine donares, eamque tu tuo nomine ei dederis, quantum ad iuris suptilitatem accipientis facta non est, et tu furti obligaris: sed benignius est, si agam contra eum qui rem accepit, exceptione doli mali me summoveri.

Translation: (Javolenus in the sixth book of his Letters)^[149]

If I give you something in order for you to make a gift of it to Titius in my name, and you then make a gift of it to him in your own name, do you think that it has become his property? He answered: If I give you something in order for you to make a gift of it to Titius in my name, and you then make a gift of it to him in your own name, by strict application of law the property has not become the transferee’s, and you are liable to a suit for theft.

Note on the Text:

Observe the style of a responsum [“jurist’s opinion in reply to a legal question”] as well as the interesting contrast that is drawn between suptilitas iuris [“strict application of law”] and benignius est [“more generous”]. The high classical jurists Javolenus, Celsus (see under Case 146), and Julian refer to benignitas or benigna interpretatio (the kind/charitable/generous construction or interpretation), if they wish to mitigate the severity of an applicable rule (subtilitas iuris), especially when a strictly invalid legal transaction should be recognized as legal in the interests of commerce (later called favor negotii).

Discussion Questions:

size=1 color=black face="Book Antiqua">1)      Why has Titius not acquired ownership according to the strict application of law?

2)      In what way is the decision of Javolenus benignior [“more generous”]?

3)      Does Javolenus regard Titius as the owner?

4)      Against which lawsuit does Javolenus consider the exceptio doli to be appro­priate?

5)      In what does Javolenus see a dolus [“fraud/trick/deceit”] of the giver? Cf. Case 71.

Literature:

Eckardt (Case 3) 25 ff.

Hausmaninger, H.

D 41.1.31 pr. (Paulus libro trigensimo primo ad edictum)

Numquam nuda traditio transfert dominium, sed ita, si venditio aut ali[qu]a iusta causa praecesserit, propter quam traditio sequeretur.

Translation: (Paul in the 31st book of his Commentary on the Praetor’s Edict)^[150]

Never does simple delivery [traditio] transfer ownership: it will be transferred only if a sale or other recognized grounds of acquisition precedes the transfer, on the basis of which the transfer follows.

Discussion Questions:

1)      Which of the following causae traditionis [“reasons for delivery”] do not qualify as bases for acquiring ownership: conferral of a gift—delivery of a dowry—loan of money—loan of a thing—deposit of a pledge—letting of immovable property—payment of a debt?

2)      Titius gives and delivers a ring to his wife. After divorce he demands the ring back with a rei vindicatio.^[151] Will his lawsuit succeed?

3)      Smith in error delivers to Jones property that is not owed. Jones knows that Smith does not owe the property, but he says nothing. Does Smith have the rei vindicatio?

4)      Smith in error delivers un-owed property to Jones, who accepts it in the good faith belief that it is owed. Can Smith vindicate it [i.e., successfully bring the rei vindicatio]?

Compare with this Case:

name=bookmark1277>§ 380 Austrian Civil Code:

Without title and without a legal type of acquisition no ownership can be obtained.^[152]

§ 929 German Civil Code:

To transfer ownership of a movable it is necessary that the owner deliver the thing to the transferee and that both are in agreement that the ownership is supposed to transfer....”^[153]

Art.

The obligation to deliver the thing is perfected by the agreement alone of the con­tracting parties.

It makes the creditor the owner....^[154]

Literature:

Kaser, M. “Zur iusta causa traditionis,” BIDR 64 (1961) 61-97, at 66 ff.

D 41.1.36 (lulianus libro tertio decimo digestorum)

Cum in corpus quidem quod traditur consentiamus, in causis vero dissentiamus, non ani­madverto, cur inefficax sit traditio, veluti si ego credam me ex testamento tibi obligatum esse, ut fundum tradam, tu existimes ex stipulatu tibi eum deberi. Nam et si pecuniam numeratam tibi tradam donandi gratia, tu eam quasi creditam accipias, constat propri­etatem ad te transire nec impedimento esse, quod circa causam dandi atque accipiendi dissenserimus.

Translation: (Julian in the 13th book of his Digesta)^[155]

If we agree about the object to be transferred but have different understandings of the legal basis for the transfer, I do not see why the transfer should be invalid—for example, if I believe that I have an obligation under a will to deliver a piece of land to you, and you think the property is owed to you because of a stipulatio.^[156] For if I deliver to you a fixed some of money with the understanding that it is a gift, and you accept it, thinking it is a loan, it is certain that the ownership transfers, and there is no impediment in the fact that we have not agreed on the grounds for giv­ing and receiving.

Discussion Questions:

1)      Can Julian, on the basis of this text, be seen simply as advocating an abstract understanding of traditio (i.e., waiving the [requirement of a] iusta causa tradi­tionis [“legitimate reason for the delivery”])? Cf.

2)      With the understanding that Julian is here making an exception to the rule of D 41.1.31 pr. (Case 69: “causal” traditio), try to find the most explicit possi­ble legal justifications for the transfer of ownership in the two fact-situations of the Julian passage.

3)      Evaluate Julian's argumentation with the assumption that the compilers have substituted traditio for style='font-style: italic'>mancipatio in the land example.

Literature:

Kaser, Max. “Das Geld im römischen Sachenrecht,” RHD 29 (1961) 169-229, at 225 ff. Flume (Case 36) 53 ff.

Evans-Jones, R. and G. D. MacCormack. “Iusta causa traditionis,” in New Perspectives in the Roman Law of Property: Essays for Barry Nicholas. New York: Oxford University Press, 1989, 99-109, at 102 ff.

Schermaier, Martin J. “Auslegung und Konsensbestimmung: Sachmängelhaftung, irrtum und anfängliche Unmöglichkeit nach römischem Kaufrecht,” ZRG 115 (1998) 235-288, at 254 ff.

D 12.1.18 pr. (Ulpianus libro septimo disputationum)

Si ego pecuniam tibi quasi donaturus dedero, tu quasi mutuam accipias, lulianus scribit donationem non esse: sed an mutua sit, videndum. Et puto nec mutuam esse magisque nummos accipientis non fi eri, cum alia opinione acceperit. Quare si eos consumpserit, licet condictione teneatur, tamen doli exceptione uti poterit, quia secundum voluntatem dantis nummi sunt consumpti.

Translation: (Ulpian in the seventh book of his Disputations)^[157]

If I turn over money to you with the intention of making a gift of it, but you accept it as if it is a loan, Julian writes that the gift is not valid: but we must examine whether the loan is.^[158] And I think the loan too is not valid, and the money is not the property of the transferee, since he accepted it with a different understand­ing. Consequently, if he spends the money, although he is liable to a condictio, he can nevertheless use the exceptio doli, since the money was spent with the giver's consent.

Note on the Text:

The rule in maiore minus inest (“the smaller is contained in the larger”), cf. Labeo D 32.29.1, or in eo quod plus sit semper inest et minus [“in that which is more, less is always contained”], Paul D 50.17.110 pr., is applied to a variety of factual contexts in order to maintain a party's intention that has been defectively manifested: for example, if someone wishes to bequeath one-fourth of his property, but in his will erroneously writes “one-half’ (Proculus, at Paul D 31.15 pr.), a valid bequest of one-fourth will exist. Or if Smith lets a piece of land for 5, but Jones thinks he is taking a lease for 10, the lease is not invalid for want of agreement: it takes effect at a payment of 5 (Pomponius D 19.2.52). Consider whether Julian could have used this rule in Case 71.

Discussion Questions:

1)      Do you think that in Julian's view a loan has been made (cf. on this point D 41.1.36 [Case 70])?

2)   On what grounds does Ulpian deny the existence of a loan?

3)      Why does Ulpian grant a condictio [an in personam action for damages] rather than a rei vindicatio [an owner's in rem action for possession of property] against the transferee? (cf. Case 119)

4)    How is the exceptio doli for the transferee to be explained? (cf. Case 68)

5)      Smith wishes to make a deposit of money. Jones thinks he is accepting this money as a loan. Explain the legal situation.

Literature:

Backhaus, R. “In maiore minus est. Eine iustinianische regula iuris in den klassischen Rechtsquellen. Herkunft, Anwendungsbereich und Funktion.” ZRG 100 (1983) 136-184, at 164 ff.

Flume (Case 36) 53 ff.

Evans-Jones/MacCormack (Case 70) 102 ff.