Types of Property
(1) Property Excluded from Private Ownership
Not all property was capable of private ownership. Gaius' main distinction between types of property is that between those subject to divine right (divini iuris) and those subject to human right (humani iuris).[1023] Only things humani iuris could be privately owned.
Things divini iuris were of three kinds. Res sacrae were things consecrated ‘by the authority of the Roman people',[1024] such as temples, shrines or, after the conversion to Christianity, churches.[1025] Res religiosae were burial places,[1026] made either on a person's own land or on a third party's land with that person's permission.[1027] The third category, res sanctae, included the walls and gates of a city.[1028]Things divini iuris could not be owned,[1029] and so any attempt to transfer ownership of such a thing would be invalid and ineffective. We are therefore concerned only with things humani iuris. These were also subject to a distinction. Some were public and some were private. Public things were ‘regarded as belonging to nobody', and were excluded from private ownership.[1030] The precise status of public rights was often unclear. For example, as we shall see below, the public had certain rights of use of riverbanks, even though the banks themselves were privately owned. More important, though, was the content of the rights held by the public over this land.
A major example of public property was provincial land, that is land outÂside Italy. This was regarded as belonging either to the Roman people or to the emperor. The significance of this was, however, rather more theoretical than practical,[1031] especially after the categorisation of property as res mancipi and res nec mancipi (see below) became less important.
Of rather more practical significance were public rights to use roads[1032] and streets,[1033] the position with respect to which has had some influence on modern law.[1034]Members of the public had rights over those rivers which were defined as public.[1035] Public rivers were those which were perennial rather than seasonal,[1036] and everyone had the right of fishing[1037] and navigation[1038] in them. This right of navigation extended, according to a passage adopted by Erskine as representÂing Scots law,[1039] to use of the riverbanks for purposes incidental to navigation.[1040] Examples given are using the banks to moor boats and unload cargo. Otherwise, however, the rights of the owner of the bank are unaffected.[1041] Where a question arises in modern law as to the meaning of navigation and what incidental uses are permissible, the Roman sources may usefully be consulted. As to other uses, however, the law has developed significantly. In modern law, there is no public right to fish in non-tidal rivers.[1042] As far as navigation is concerned, the leading case is Wills’ Trustees v Cairngorm Canoeing and Sailing School Ltd,[1043] in which there was some discussion of Roman law.[1044] Although Roman law was accepted as forming the historical basis for Scots law in this area, there are some clear differences. In modern law, the rivers in which the right of navigation can arise are those which are navigable rather than simply those which are perennial.[1045] Moreover, in Scots law, the right of navigation does not arise automatically, but instead must be acquired through use. The only exception to this is in tidal parts of a river, where (in common with other tidal waters) there is an automatic right of navigation.
Members of the public also had rights over the sea, the seabed and the foreÂshore.[1046] This included a right of fishing, so anyone who prevented me fishing would potentially be delictually liable.[1047] The public right also extended to using the foreshore for drying nets, erecting a hut for shelter or beaching a boat.[1048] For Scots law, Stair (using J.2.1.5 as his basis) adds the casting of anchors and the taking on of ballast or water.[1049] However, as far as the erection of shelters is concerned, Stair envisages something very much temporary such as a tent.
It is clear that Roman law was much more liberal than modern Scots law on public rights to make more permanent alterations to the foreshore and seabed. The jurist Neratius tells us that, not only may a member of the public build on the foreshore, but in addition the builder has ownership of the building.[1050] The only apparent restriction on such work is that it should not inconvenience othÂers exercising their rights.[1051] It is true that Pomponius says that a decree of the praetor should be obtained before building work begins,[1052] but it is not clear what the consequences would be of failure to follow this procedure. Nor is it entirely clear what is the nature of the builder's right in the land built on, as Neratius says that, on removal of the building, the land reverts to its previous state rather than remaining the property of the builder.[1053] At any rate, it is clear that in Scots law the public right does not allow such alterations to the foreshore or seabed.[1054]The right to use public land could be asserted by anyone,[1055] and an interdict was available to prevent building on public land that damaged anyone else.[1056]
(2) Corporeal and Incorporeal Property
We saw in Chapter 3[1057] that Gaius included as the second part in his institutional scheme the ‘law of things'. This embraced the law of property in the narrower sense of physical assets, the law of obligations and the law of succession. All of these areas were bound together in that the rights arising from them all can be considered economic assets. Gaius thus proposes a law of property in a wider sense, to include all economic assets. These assets can be classified as either corÂporeal or incorporeal. Corporeal things are those things ‘which can be touched' (the word ‘corporeal' means ‘having a physical body').[1058] Examples given by Gaius are land, a slave, an item of clothing, gold and silver.[1059] Incorporeal things cannot be touched.
They have no physical existence, and instead ‘exist only in the law'.[1060] In other words, incorporeal things are legal rights. Examples given are an inheriÂtance, a usufruct,[1061] ‘obligations however contracted' and a praedial servitude.[1062] A right is incorporeal property even if it relates to corporeal property.[1063] This disÂtinction between corporeal and incorporeal property is familiar in modern law. However, in Roman law, the implications of classing rights arising from the law of obligations and the law of succession as incorporeal property were not fully worked out, and these rights were not fully incorporated into property law. In particular, the idea that rights arising from the law of obligations could be transÂferred emerged only slowly and with difficulty, and was never fully accepted.[1064](3) Moveable and Immoveable Property
It is usual for legal systems to make a distinction between land and other types of property. Such a distinction is made in Roman law. The category of immoveable property includes land and things attached to it, such as buildings and plants.[1065] Moveable property is everything else. This is broadly in line with the modern Scots distinction between heritable and moveable property, although it is not identical with it.[1066] Where there is a clear difference between Roman and modern law, though, is in the relative importance of the distinction. While there were certain legal differences between moveable and immoveable property,[1067] on the whole the distinction between moveable and immoveable property was far less important than it tends to be in modern law. Far more important was the Roman classification of property as res mancipi or res nec mancipi, which cuts across the moveable/immoveable distinction.
(4) Res Mancipi and Res Nec Mancipi
A distinction was made between property which could only be transferred using certain formal procedures (mancipatio and in iure cessio, considered below) and property which did not require these procedures.
Things requiring formal transÂfer were known as res mancipi, and those that did not require this were known as res nec mancipi. The category of res mancipi included the following items:[1068]• Italic land, meaning land in Italy. Provincial land was not included.[1069]
• Slaves.
• Animals ‘commonly broken to draught or burden', oxen, horses, mules and asses being the animals identified as falling into this category. There was a dispute between the Sabinians and Proculians[1070] as to when individual animals became res mancipi. The Sabinians held them to be res mancipi at birth. The Proculians held them to become res mancipi only when they were broken in or, if the individual animal was too wild to be broken in, when they reached the usual age for breaking in.[1071] Wild animals — Gaius gives bears and lions as examples — were not res mancipi. The same was true of animals such as eleÂphants and camels, which were often used as beasts of draught or burden, but which were not known to the Romans when the list of res mancipi was fixed.[1072]
• Rustic praedial servitudes.[1073]
The basis of the list is unclear. It is not simply a question of value,[1074] as many items not on the list would have been more valuable than many that were included. It is common for legal systems to require particular publicity and formality in the transfer of land,[1075] but that does not explain the other items included. The list does suggest a connection with agriculture, an indication perhaps that it dates from a period when agriculture was an activity of particular economic importance for the Romans.[1076] At any rate, for reasons outlined below, the special methods for transfer of res mancipi fell out of use in the classical period. The classification of property as res mancipi or res nec mancipi was finally abolished by Justinian,[1077] and it is not found in later law.
(5) Fungible and Non-Fungible Property
A final distinction to be made is that between fungible and non-fungible property. Fungible things are those that are identical or sufficiently similar to others of the same type that they are interchangeable. The term is most often used in relation to things that are consumed by use,[1078] but mass-produced items may also fall into this category.[1079] The distinction has significance in various contexts.[1080]
C.