Transfer of Res Mancipi
As already mentioned, the legal significance of the classification of certain types of property as res mancipi was the use of certain special methods for transfer of ownership. These special methods, mancipatio and in iure cessio, were civil law modes of transfer, meaning (as we saw above) that they were only available for use by those with a Roman citizen's right of commercium.
As they were abolished byJustinian, they were not discussed in the Corpus Iuris Civilis·, and so did not influÂence later law. They will therefore be considered only briefly here.(1) Mancipatio
The first of the methods available for the transfer of res mancipi was called manciÂpatio. This, says Gaius, was in the form of a ‘sort of imaginary sale'.[1081] It involved the parties coming together with five witnesses, plus a sixth person to hold a bronze scale.[1082] All had to be Roman citizens of full age.[1083] The transferee would hold a bronze ingot, and then say: ‘I declare that this slave[1084] is mine by Quiritary right,[1085] and he is purchased by me with this bronze ingot.'[1086] Finally, the transferee would strike the scale with the ingot and give it to the transferor as a symbolic price.[1087] With the exception of land, the transfer of which did not have to take place on the land, the property being transferred had to be present during the ceremony and be grasped by the transferee.[1088] As a result, mancipatio could not be used for incorporeal things. Gaius explains that the bronze and scales are used because the ceremony pre-dates the introduction of coined money.[1089] At that period, bronze ingots, valued by weight, were used.[1090]
This procedure is characteristic of the formalism typical of early law,[1091] and it seems that compliance with the formal procedure was all (or almost all).
While the transferor did have to have the right to transfer the property,[1092] the validity of the transfer was not affected by (for example) fraud on the part of the transferor. The procedure was also cumbersome and inconvenient.[1093] In practice it seems that, in the classical period, it became common to rely on documents narrating that a mancipatio had taken place, with this very likely standing in for the actual performance of the procedure.(2) In lure Cessio
An alternative — available in fact for res nec mancipi as well — was the procedure known as in iure cessio. It was carried out in the presence of a magistrate,[1094] and took the form of a collusive litigation.[1095] In its essentials, the procedure involved the intended transferee asserting ownership of the property, and the transferor acquiescing in that assertion. The magistrate would then give formal confirmaÂtion (addictio) of the property as belonging to the intended transferee.[1096] As with mancipatio, the validity of the transfer was unaffected by such things as fraud or coercion. We are not directly told that the transferor actually had to have a right to the property. However, if the procedure was viewed as being in substance a collusive litigation as well as being one in form, that would suggest that such a right would be needed. The true owner not being a party to the litigation, there would be nothing here that could prevent the true owner coming forward and asserting his or her own right in subsequent proceedings.
The need for the presence of a magistrate meant that this procedure was even more cumbersome than mancipatio. In practice, this meant that it tended to be used for the most part for the creation of servitudes, these being incorporeal and mancipatio thus being excluded.[1097]
(3) Informal Transfer and Bonitary Ownership
Both mancipatio and in iure cessio were cumbersome procedures, unsuited to comÂmercial needs.
It is hardly to be supposed that whenever, say, there was to be a sale of a horse, the buyer and seller went to find the nearest magistrate or gathered together the six additional people needed for mancipatio. In practice, many transÂfers of res mancipi would be effected informally. This would avoid undue formality, but had the severe disadvantage that the transferee did not become owner.[1098] It is true that the transferee might become owner by usucapio, by possessing for a period of time.[1099] However, that would take either one or two years, depending on the type of property, and in the meantime the transferee would be vulnerable to challenge. Intervention by the praetor helped in two ways. First, if the transÂferee was in possession, the praetor gave him or her a defence if the transferor attempted to recover the property on the basis of ownership. Second, the actio Publiciana[1100] allowed the transferee, if out of possession, to recover the property from whoever was in possession. This included the transferor, and was achieved by allowing the transferee to plead based on a fiction that the required period for usucapio had already run. To a very great extent, this put the transferee in the practical position of owner, even though strictly the transferor was still owner (and could enforce his or her right against anyone other than the transferee). For Gaius, the result of this was that ownership was divided.[1101] The transferor was owner according to civil law, while the transferee was owner according to praetorian law. A transferee in this position is known as a ‘bonitary owner', so called because in the words of Gaius the property was in bonis of the transferee (i.e. among his or her goods).[1102] As a result, either could defend their position against the rest of the world, while the bonitary owner would take precedence in a dispute between the two. With the abolition of the res mancipi/res nec mancipi distinction, the idea of bonitary ownership became redundant, and has not been received in Scots law.[1103]D.