Understanding Roman Property Law: A Comprehensive Guide
Human Real: Rights on Things
Distinction Between Real Rights and Duties of Obligation
These rights pertain to things and originate from the distinction between actio in rem (property right) and actio in personam (claims against a person). The key differences are:
- Subjects: Obligation rights involve an active subject (creditor) and a passive subject (debtor). Real rights involve only an active subject, as the passive subject is universal and indeterminate.
- Object: Real rights are recognized immediately on a specific object. In obligations, the object is immaterial, as it is the debtor’s action that matters.
- Actions: Real rights are protected by actio in rem, while obligations are protected by actio in personam.
- Duration: Property rights tend to persist, while obligations tend to be extinguished.
Property
The absolute nature of property initially implied that there could only be one owner of a thing. Key characteristics include:
- Absorbent: Anything added to the property becomes part of it.
- Limited: The need for boundaries led to ceremonies establishing limits. Territories were not clearly defined and privately owned land existed alongside “Ager publicus.”
- Immune: Property was initially free from public or private charges. Taxes on provincial estates meant owners did not have full ownership.
- Perpetual: Ownership could be divided into installments.
- Unlimited (Vertically): Ownership extended upwards and downwards.
Classes of Property
Dominium ex iure Quiritium
This property right, recognized by ius civile, was exclusive to Roman citizens. Requirements included:
- The owner must be a Roman citizen.
- The object must be movable or immovable property located in Italy.
- Transmission must follow specific formalities: For immovable property and res mancipi, transfer had to be through mancipatio or cessio. For res nec mancipi, transfer could be through traditio.
Defense: Reivindicatio
This legal action protected Dominium ex iure Quiritium.
Bonitary or Praetorian Ownership
If formalities of ius civile were not met, the buyer didn’t become owner ex iure Quiritium. The praetor granted the buyer the exceptio reivindicae et traditae to prevent the previous owner from reclaiming the property. The actio Publiciana, a fictional action, allowed the buyer to claim ownership as if they had completed the time required for usucapion.
Provincial Property
This involved possession of provincial land belonging to the Roman people or emperor. Individuals could use the land in exchange for a tax (tributum). This gradually became equivalent to Dominium ex iure Quiritium, with Justinian eventually eliminating the distinctions.
Peregrine Property
This applied to non-Roman citizens and was protected by the praetor based on ius gentium.
Defense of Property
Initially, property defense was private and by force. Later, the state assumed responsibility through legal actions:
Reivindicatio
Addressed attacks against property with total injury. Partial damage was addressed through other actions (actio negatoria, actio prohibitory). Criminal damage was addressed through actio legis Aquiliae (compensation) and actio furti (theft). Disputes between neighbors had specific actions (e.g., actio aquae pluviae arcendae). Reivindicatio aimed to protect fundamental property rights. In classical law, only the owner ex iure Quiritium could be the plaintiff. In Justinian’s time, any owner could be the plaintiff. The defendant was the possessor of the claimed thing. The object was an individually determined thing, including parts of things. Procedurally, reivindicatio evolved from legis actio in rem to per formulam petitoriam and finally to extraordinem. Effects of reivindicatio included recognition of ownership, restitution of fruits, reimbursement of expenses, return of the thing, cessation of disruptive actions, restoration of the thing to its original state, and the defendant providing a cautio non amplius turbandae (guarantee not to disturb the owner’s possession in the future).
Prohibitory Action
Sought an injunction to prevent a third party from exercising a servitude right on the claimed thing.