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EXCURSUS II.

IURA IN RE ALIENA OTHER THAN SERVITUDES.

Superfic1es is a real (Dig. 30. 86. 4) right of praetorian origin to a building or part of one, either in perpetuity or for a very extended term, without any right to the soil upon which it stands: it is a ius in re aliena because ' superficies solo cedit;' the house is properly owned by the owner of the soil: 'superficiarias aedes appellamus, quae in conducto solo positae sunt, quarum proprietas et civili et naturali iure eius est, cuius et solum' Dig. 43. 18. 2. The modes in which it could arise are—(1) contract, whether it took the form of gift, sale (Dig. 43. 18. 1. 1), hire (the annual rent being called solarium), or permissive building upon land of the state (Dig. 43. 8. 2. 17), or a private person; (2) legacy; (3) judicial decree. Whether it could be acquired by usucapio is much disputed: see Dig. 6. 2. 12. 3; 41. 3. 26. Superficies was alienable inter vivos or by will (Dig. 43. 18. 7. 9), was heritable, and could be made the subject of a pledge or servitude, Dig. ib. 1.6 and 7, ib. 9. For the protection of his right the superficiarius could bring in their 'utilis' form all the actions available to the dominus—rei vindicatio, negatoria, confessoria, and Publiciana, Dig. ib. 1. 1. 3. 6; Dig. 6. 1. 73. 1, and he had a special interdict de superficie analogous in operation to uti possidetis. That he technically 'possessed' the building seems to be proved by his ability to bring directly the interdicts de vi and de precario, Dig. 43. 16. 1. 5; 43. 26. 2. pr. and 3.

Emphyteusis may be traced back to the agri vectigales, large tracts of grazing land in Italy belonging to the state or the smaller civitates and municipia, but held and enjoyed by private persons subject to the payment of a perpetual rent (vectigal), or let out upon lease for very long terms of years. The interest of such occupiers received a ' real' character from the action of the praetor, who protected their possession (Dig. 2. 8. 15. 1) by interdicts, and by a utilis actio in rem (actio vectigalis, Dig. 39. 2. 15. 26) available even against the lessor himself when non-payment of rent was not alleged; 'agri civitatum vectigales vocantur, qui in perpetuum locantur, id est hac lege, ut quamdiu pro his vectigal pendatur.tamdiu neque ipsis, qui conduxerint, neque his, qui in locum eorum successerunt, auferri eos liceat. Qui in perpetuum fruendum conduxerunt a municipibus, quamvis non efficiantur domini, tamen placuit competere eis in rem actionem adversus ipsos municipes, ita tamen, si vectigal solvant' Dig. 6. 3. 1 and 2. A new ius in re aliena had thus arisen, heritable and alienable both inter vivos and by will, though not yet known by a specific name, nor yet perhaps clothed with a very specific character. We learn from Gaius (iii. 145) that in his day it was a question whether the interest acquired by such lessees did not so closely resemble ownership as to make the transaction a sale rather than a contract of letting and hiring: but the better opinion was in the negative. After the third century, and especially in the eastern portion of the Empire, the practice of letting agricultural land of all kinds upon these conditions was adopted very largely by the Emperor, corporations generally, and even by private persons: in the imperial enactments after Constantine we have a new terminology, lands so let being termed praedia emphyteuticaria, and the rent called pensio or canon more often than vectigal. The precise nature of these perpetual leases and of the emphyteuta's right was determined by Zeno (iii. 24. 3 inf.), who enacted that the transaction should be governed by the rules neither of sale nor of hire, but be a special contract by itself: his settlement of the law passed with little or no alteration into the Corpus iuris of Justinian.

Subject to the principle that the general rules relating to emphyteusis might be modified by express provision or agreement (in which case writing was necessary, Cod. 4. 66. 1), those rules were as follow. The emphyteuta (person invested with the right) was entitled to the complete use of the land (Dig. 6. 3. 1. 1) and its fruits, his title to which was separation, note on ii. 1. 35 supr., Dig. 22. 1. «5. 1: he could alter its character provided he did it no permanent injury, Nov. 7.3; 120. 6: his right was heritable and alienable inter vivos and by will, and he could pledge it and create servitudes available during the continuance of his own interest. In the form of utiles actiones he enjoyed all the remedies of a full dominus: he had civil (though derivative) possession, which was protected by interdicts. But he must pay all taxes, and he was liable to eviction without any claim to compensation for improvements if he failed in this duty for three successive years, or if his rent was three years in arrear, or two if the dominus was a spiritual person; and the latter was also entitled to evict him if he allowed the condition of the land to deteriorate, Nov. 120. 8. From payment of his rent he was exempted only by complete destruction of the land (Bk. iii. 24. 3 inf., Cod. 4. 66. 3). Should he propose to sell his interest, the dominus had, within two months, a right of pre-emption (ius upon^atai) at the price agreed upon: the person of the alienee had to be approved by the latter, who, however, could only refuse his sanction on reasonable grounds. The modes in which emphyteusis arose are identical with those for the creation of superficies, and the doubt as to the admissibility of usucapio applies to both.

The mention of pignus, the last of the three iura in re aliena which are not servitudes, makes this the most convenient place for discussing the different forms which pledge or mortgage took in Roman law. The object of pledge is to give a creditor a real security in addition to the personal security of his debtor. If the creditor relies for satisfaction of his debt solely on a general belief in his debtor's ability and willingness to meet his liabilities, he contents himself with a personal security, and if the debtor's assets prove insufficient, he must pro tanto be a loser: but if by any means he obtains rights over some definite portion of the debtor's property, to which he can resort in the event of non-payment, his security is real, 'quia expedit ei pignori potius incumbere quam in personam agere' Bk. iv. 1. 14 inf. Real security, in short, is a means of protecting a creditor against the risk of the debtor's insolvency: for creditors who are only 'personally' secured have no rights against the specific property to which the 'really' secured creditor can resort until the latter has been paid in full. Bearing this in mind, it is clear that that form of real security is the most satisfactory which, while it absolutely secures the creditor, causes the least inconvenience in other ways to the parties concerned. It is important to observe how far these conditions respectively are satisfied by the different forms of real security known to the Roman lawyers, and also how far these themselves belong to the department of iura in re aliena.

The earliest form was that known as fiducia, a term which here bears the same meaning as in connection with deposit, emancipation, and coemption, the general idea being that of a conveyance under an agreement of trust, whereby the transferee is laid under an obligation to deal with the person or property conveyed to him in a particular manner. The aim of real security was obtained by the debtor's conveying specific property (if res mancipi, by mancipation, if nec mancipi, by in iure cessio) to the creditor, upon terms that the latter shall reconvey upon payment of the debt within a specified time: 'fiducia est cum res aliqua sumendae mutuae pecuniae gratia vel mancipatur vel in iure ceditur' Isidor. orig. 5. 25. The effect of the transaction was thus to transfer the property in absolute ownership (subject to the trust agreement) to the creditor: hence a striking resemblance to the English mortgage of realty. Consequently, the creditor could, subject to the terms of his fiducia, deal with it as he pleased, though any gain he made by it until the debtor lost his right of redemption went to reduce the principal debt: 1 quidquid creditor per fiduciarium servum quaesivit sortem debiti minuit' Paul. sent, rec. 2. 13. 2: he had the right of sale necessarily, as being dominus, though if he exercised this right before the day fixed for payment had passed he did so at his peril, and of it he could not deprive himself even by express agreement, Paulus L c. 5. But the debtor, though no longer owner, could still sell it as well: for (Bk. ii. 1. 41 supr.) he could not be compelled to transfer to the vendee until the latter had paid the price, and with this he could redeem the property, and so make a good title: but he could not sell to the creditor, for ' suae rei emptio non valet.' In the event of sale by the creditor the debtor was entitled to any surplus after satisfaction of the debt, Paulus 1. c. 1: and it seems probable that, in the absence of agreement to the contrary, he might redeem the property at any time so long as the creditor had not yet parted with it. Such contrary agreement usually took the form of a foreclosure clause (lex commissoria), providing that in default of punctual payment the fiducia should lapse, and the property vest absolutely in the creditor: this was prohibited for all forms of pledge by Constantine, but was reintroduced in a modified form by Justinian. The remedy by which the debtor enforced his rights against the creditor was the actio fiduciae, condemnation in which-entailed infamia, Gaius iv. 182. The advantages of fiducia, as a species of real security, lie in the fact that no subsequent dealing with the property by the debtor can prejudice- the creditor, so that collisions between different creditors become impossible: its faults are mainly that only such kinds of property can thus be used which admit of mancipatio or in iure cessio (by which provincial land was excluded), and that the debtor was deprived of the use and enjoyment of the object pledged. This last inconvenience, however, was frequently obviated by his being allowed to receive it back on hire or as precarium.

When possession had been raised to a legal interest by the praetor's introduction of special remedies (possessory interdicts) for its protection, a new form of real security, called pignus, came into existence, the transaction consisting in mere delivery (traditio) of possession of the object (as distinct from its ownership) from debtor to creditor, with the understanding that the possession should be redelivered on payment of the debt: 'pignus est, quod propter rem creditam obligatur, cuiusque rei possessionem solum ad tempus consequitur creditor, dominium penes debitorem est' Isidor. orig. 5. 25, 'proprie pignus dicimus, quod ad creditorem transit, hypothecam, cum non transit, nec possessio, ad creditorem' Dig. 13. 7. 9. 2. In origin perhaps pignus was regarded less as a form of security than as a device by which the debtor, being deprived of the possession and enjoyment of property, would be strongly induced to make every effort to discharge his liability as soon as possible. This conjecture is strengthened by the fact that a right of sale was not incidental to a pignus, as such; if the creditor had it at all, it was only by express agreement (Bk. ii. 8. 1 supr. from Gaius ii. 64), and to sell it without such right was theft in law: 'si is qui pignori rem accepit, cum de vendendo pignore nihil convenisset, vendidit .... furti se obligat' Dig. 47. 2. 74. As a matter of common right, the creditor was entitled only to retain possession of the object pledged; he might not use it: 'si pignore creditor utatur, furti tenetur' Dig. ib. 54; cf. Bk. iv. 1.6 inf.: but where the object was a fruitbearing thing, it was often agreed that the pledgee should be entitled to the fruits in lieu of interest: the pignus was then called specifically antichresis.

Pignus then, in itself, is not a ius in re aliena. The sole right which the pledgee could assert against the world was the right of possession, and this is never treated as a ius in re aliena by the Roman jurists. The right of sale, as has been observed, rested only upon specific agreement: and even where it had been stipulated for the system had grave flaws. No object could be pledged in this manner which could not be possessed. In relation to some other species of property pignus was no real security at all: even if the pledgee were in possession of a praedium Italicum, the pledgor could mancipate it to a third person (the transaction not being required to be on the land, Gaius i. 121), who could recover it by real action. Lastly, if the pledgee proposed to exercise his right of sale, he could give no better title than he had himself: all that he could transfer to the vendee was possession. This, it is true, would in time be converted by usucapio into dominium, and in the meanwhile the possessor would be sufficiently protected by the actio Publiciana (Bk. iv. 6. 4 and notes inf.); but the inability of a pledgee to make a good title as

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