Page images
PDF
EPUB

ided

of which no one has acquired the ownership, as wild animals, or unoccupied islands in the sea. 61. Having thus given a sketch of the position of persons in

Roman law, as also of the divisions of things, we now Rights.

. proceed to speak of that connection between persons and things which what are termed rights express. The necessities of his physical position oblige man to exert his power over the

world of things. At first property is held by the

4. tribe or community, then by the family, and lastly by the individual; and when society has reached this last stage, which it had reached in the earliest known times of Roman law,* his special interests prompt each man to claim, as against his fellows, an exclusive interest in particular things. Sometimes such a claim sanctioned by law is urged directly: the owner, as he is said to be, of the thing publishes this claim against all other men, and asserts an indisputable title himself to enjoy all the advantages which the possession of the thing can confer. Sometimes the claim is more indirect; the claimant insists that there are one or more particular individuals who ought to put him in possession of something he wishes to obtain, or do something for him, or fulfil some promise, or repair some damage they have made or caused. Such a claim is primarily urged against particular persons, and not against the world at large. On this distinction between claims to things advanced against all men, and those advanced primarily against particular men, is based the division of rights into real and personal expressed by writers of the middle ages,t on the analogy of terms found in the writings of the Roman jurists, by the phrases jura in re and jura ad rem. A real right, a jus in re, or, to use the equivalent phrase preferred by some later commentators, jus in rem,f is a right to have a thing to the exclusion of

• We have, however, such expressions as sui heredes applied to children who, after the death of the paterfamilias, took the inheritance as something belonging to themselves, and this is obviously a survival from the times when the family rather than the individual was regarded as the owner of property.

+ The term jus in re appears in the summary of law bearing the name of the Brachylogus, which belongs to the twelfth century ; both phrases occur in the pontifical constitutions of the thirteenth century. (See Sexti Decret. iii. 7, 8, in quibus jus non esset quæsitum in re, licet ad rem.)

The objection to using the term jus in re is that the expression occurs in the classical jurists as meaning an interest in a thing short of ownership, as the interest of a mortgagee in the thing pledged, and on this ground the term jus in rem, which is not found in the classical jurists, but is supported by the analogy of the familiar term actio in rem, seems preferable.

all other men. A personal right, jus ad rem, or, to use a much more correct expression, jus in personam, is a right in which there is a person who is the subject of the right, as well as a thing as its object, a right which gives its possessor a power to oblige another person to give or procure, or do or not do something. It is true that in a real right the notion of persons is involved, for no one could claim a thing if there were no other persons against whom to claim it; and that in a personal right is involved the notion of a thing, for the object of the right is a thing which the possessor wishes to have given, procured, done, or not done. But the leading principle of the distinction is simple and intelligible; and though it has not been formally adopted in the system of the Institutes or of the leading jurists, yet the classifications of the different relations of persons and things which they actually employed, are so capable of being assimilated to that which this distinction suggests that we need not hesitate to adopt it.

III. RIGHTS OVER THINGS. 62. The most complete right over a thing is of course that possessed by the absolute owner of the thing, the

Dominium, person who has power to dispose of it as he likes, and who holds it by a title recognised as valid by law. This ownership was in Roman law expressed by the word dominium, sometimes by proprietas. The dominus was entitled to the use of the thing (usus), to the enjoyment of all its products (fructus), or to consume the thing entirely if it was capable of consumption (abusus). He could also dispose of or alienate it at will. In the ancient system of private law, the owner was said to be owner Ex jure Quiritium. Nor did the old law recognise any dominium other than that which was enjoyed ex jure Quiritium. But the prætors found occasions when they wished to give all the advantages of ownership, but were prevented by the civil law from giving the legal dominium. Another kind of dominium came therefore to be spoken of; and the term in bonis habere was used to express an ownership which was practically absolute because it was protected by the prætor's authority, but which was not technically the same as ownership ex jure Quiritium. Commentators have called this ownership the dominium bonitarium, i term not, however, used by the jurists. The distinction between the dominium bonitarium and that ex jure Quiritium entirely disappeared under Justinian. 63. To the notion of dominium was opposed that of possessio.

A person might be owner of a thing and yet not posPossessio.

' sess it, or possess it without being the owner. Possession implied actual physical occupation, or detention, to use the technical term, of the thing ; but it also implied something more in the sense in which it was used by the Roman lawyers. It implied not only a fact, but an intention; not only the fact of the thing being under the control of the possessor, but also the intention on the part of the possessor to hold it so as to reap exactly the same benefit from it as the real owner would, and to exercise the same rights over it, even though he might be well aware that he was not the real owner, and had no claim to be so. The possessor was entitled to have his possession protected against every one but the true owner, and length of possession would, under certain conditions fixed by law, make the possessor really become the owner of the thing possessed.

64. As the rights over a thing may be very numerous, it is perfectly possible to separate them, and to give some to one person and some to another. We can, for instance, separate the right of walking in a field from the right of digging under the surface, and give the right of doing the one to this person and of doing the other to that. In this way each right that is separated off may be considered as a fragment of the whole dominium, capable of being given away from the proprietor. These fragmentary rights, these portions of the whole right comprised in the

absolute ownership, were termed servitutes, because Serritutes.

*. the thing was under a kind of slavery for the benefit of the person entitled to exercise over it this separate right. In some servitudes, the right over the thing subject to the servitude, res serviens, was attached to the ownership of another thing (res dominans) : the servitudes were then spoken of as servitutes rerum or prædiorum, and a distinction was made in these servitudes according as the right given by them referred to the soil itself, as the right to go or to drive over it, when the servitudes were said to be rusticorum prædiorum, or to the soil as supporting some superstructure, as a house, when the servitudes were said to be urbanorum prædiorum. In other servitudes, the right was given to particular persons; and the servitudes were then termed servitutes personarum. The most important of these latter servi

tudes were ususfructus and usus. Ususfructus was the right to enjoy a thing belonging to another person so as to reap all the produce derivable from it, as, for instance, all the fruits of the soil; usus was the right to use and enjoy a thing belonging to another person, only without reaping any, or only a small portion, of its produce. Only immoveable property was subject to the servitutes prædiorum ; both moveable and immoveable to the servitutes personarum.

65. There were two other rights over things which had something of the nature of servitudes, but which received

Emphyteusis a particular name. These were emphyteusis and and supersuperficies. The former was an alienation of all rights reves. except that of the bare ownership for a long term, in consideration of the proprietor receiving a yearly rent (pensio); the latter was the alienation by the owner of the surface of the soil of all rights necessary for building on the surface, a yearly rent being generally reserved.

66. Lastly, there was the right given over a thing by pledge or mortgage, pignus, hypotheca; the former term being used to express the case of the thing, over which

Jus pignoris. the right was given, being placed in the possession of the creditor, the latter to express the case of it being left in the possession of the debtor. The right was given to secure a creditor the payment of his debt; and he ultimately had power to sell the thing, and to satisfy his claim out of the proceeds, or, if he could find no purchaser, to have himself made owner of the thing.

67. We may now proceed to speak of the mode in which rights over things are acquired. We find at the outset an Acai obvious difference between acquiring rights over a par- of rights over ticular thing and acquiring rights over the entirety of things a number of things comprised in such a term as an inheritance, which includes the entirety of the rights belonging to a deceased person, both over things and against persons. We may thus divide the subject of the acquisition of rights into two parts: the first comprising the modes in which rights are acquired over particular things; the second comprising the modes in which an entirety (universitas) of rights, both over things and against persons, passed from one person to another.

68. We may mention, as the first of the modes of acquiring particular things, occupation, i.e. the seizing on a thing which is

tion

a res nullius, i.e. without an owner : land in an unoccupied Acquisition of country is a res nullius, so is a wild animal; if we rights over seize on, or, as we should say, occupy the land, or particular things. Occu- catch the wild animal, we gain our right over the patio.

soil or the animal by having been the first to seize it. 69. Accession is the general term for the acquisition of rights

either over things which are added by the forces of Accessio.

nature to, and become an inseparable part of, another thing regarded as the principal thing, or over things which by the operation of man are united with other things so as to form an indivisible product. The owner of the principal thing, by virtue of his being owner, is the owner also of the accessory thing. 70. A contract or gift, by which one person promised to give

a thing to another, did not make that other the owner Tradition.

of the thing. A further step was necessary. The thing must be handed over to the person who was, under the terms of the contract, to become the owner of it. This handing over was called traditio ; and a perfect traditio implied, first, that it was a real absolute owner, capable of alienating the thing, who transferred it, and secondly, that he placed the new proprietor in actual possession of the thing. 71. The above are termed natural modes of acquisition; but

there are some which are said to derive their force Gifts.

only from the civil law. One is acquisition by gift. Strictly speaking, gift is not a peculiar mode of acquisition, but an acquisition by delivery with a particular motive for the transfer. Probably it was on account of the solemnities with which under Justinian gifts had to be made that gifts are treated in the Institutes as a special mode of acquisition. One special kind of gift was a donatio mortis causa, a gift to take effect in case of the death of the donor in the lifetime of the recipient. 72. The law also gave the ownership of a thing by usucapio,

that is, by quiet possession, bona fide, and founded on

10. some mode of acquisition recognised by law, which sufficed, under the civil law, to transfer the dominium, or legal ownership, if maintained during one year over moveable things, or during two years over immoveable. The operation of Usucapio was of great importance in Roman law; for by it the interest of a person to whom a res mancipi was transferred otherwise than by mancipation and the interests of all persons who held things

« PreviousContinue »