Acquisition and Transfer of Property in Roman Law
Addictio
Addictio refers to the act attributed by the praetor to the purchaser in a public auction (the highest bidder who becomes bonorum emptor), adsignatio (attribution of useful domain for ager publicus to individuals), or the distribution of spoils of war. Adjudicatio refers to the decision of the trial judge in dividing property.
Mancipatio
Mancipatio was used for the transfer of res mancipi, which included land (fundus), houses (domus), slaves, and beasts of burden. Money and other animals were irrelevant as they were intended, in part, for trade. The system of mancipatio seemed to be a form of persuasion for the accipiens mancipi. The mancipi did not obtain the good if he did not utter the sacred words; mancipatio did not occur as a solemn mechanism. The libripens weighed a piece of copper on the balance, and the mancipi accipiens uttered a sacred word. After the silent dans mancipi, it implied that he had “imperium” over that event. The mancipi dans had the responsibility to describe the good, and if he did wrong, the accipiens mancipi could use the actio mancipi against the dans. Thus, he had the responsibility of auctoritas, which was to defend the mancipi accipiens in a trial in the unlikely event that a third party claimed the good, considering it as their own.
In Iure Cessio
In Iure Cessio was a method for transmitting property. It took place before a magistrate and was a feigned reivindicatio. The applicant (dans accipiens) and the defendant would go to the praetor to start the fictitious trial, ending with a confessio in iure procedure. Both res mancipi and nec mancipi could be transmitted through this method.
Vindictive Legacy
Vindictive legacy was a method by which a person (X) was attributed the possession of a thing (K). The formula used was “lego.” It is assumed to be a direct transfer from the testator to the legatee, subject to the death of the testator. The testator always had to be the owner of the object at the time of making the will.
Traditio (Delivery)
Traditio means to put a thing at the disposal of another. For traditio to have the effect of transferring ownership, it is necessary that this ceremony precedes a just cause that would legitimize the proposed acquisition. If not preceded by a sale or just cause, it does not produce a transmissible title of ownership.
Requirements:
- Regarding the object (res): It applied to res nec mancipi and properties outside of Italy.
- Regarding the acquirer: The customer has to take possession of the object, grasp it. In ancient times, there was no problem with movable property. With real estate, he toured around the property.
Types of Ficta Traditio
- Traditio symbolica: Used to transmit a property or something that cannot be transmitted by hand.
- Traditio longa manu: Pretending to reach out to the property.
- Traditio brevi manu: When the thing was already in possession of the buyer as a tenant, squatter, etc.
- Regarding the transferor: The transferor must be the owner because traditio is a derivative method of acquiring property. If traditio is applied, the rule that nobody gives what he does not have applies. The recipient of a non-owner is considered by the Praetor to be a civil keeper, a praetorian owner because he has the thing among his property and enjoys the Publiciana action against third parties. It is a fictional action that contains the fiction of the owner who uses the action. The praetorian owner could exercise it against whoever had the object or took other action illicitly.
Exceptio rei traditae: Used against the person who transferred the thing by traditio and not mancipatio and still has ownership of the thing. If, in addition, he also retains possession, the civil possessor may use the Publiciana action.
Just causes that justify the delivery of property through traditio:
- Credere (to lend)
- Emere (to buy)
- Donare (to donate)
- Dotem Dare (to give a dowry)
We need some of them to transmit property by Traditio.