DOMI´NIUM
DOMI´NIUM
Dominium or
rerum
dominium signifies ownership of property, and
dominus is the owner
Proprietas
is frequently used as an equivalent to
dominium; and when ownership is distinguished from
usus fructus, the word
proprietas is preferred to
dominium
as an expression for ownership. The term
dominium or
dominium legitimum is,
strictly speaking, confined to ownership
ex jure
Quiritium, i.e. to civil ownership, and does not include
ownership
in bonis, i.e. praetorian ownership.
Ownership is not defined by Roman legal writers, but the general notion
implied in the term is clear. It is a right which, subject to certain legal
limitations, entitles a person to exercise full control over a corporeal
thing to the exclusion of all other persons. Ownership
[p. 1.652]cannot, however, be defined by enumerating all the powers which
may be incidental to it, as the
jus utendi, fruendi,
possidendi, disponendi, since ownership may exist
notwithstanding that one or more of these powers is detached from it. A
thing may be considered to belong to a person whose powers over it are very
much curtailed; hence arises the difficulty of defining ownership. The
limitations to which ownership in Roman law is subject are either general or
special. The former are imposed for the purpose of enforcing the precept
sic utere tuo ut alienum non laedas: they
prevent owners from so using their powers as to injure adjoining owners or
the public generally. Special limitations on ownership arise by persons
acquiring rights over property owned by someone else. For instance, the
owner may be bound to allow to another person a certain use or enjoyment of
the thing of which he is
dominus, or to abstain
from doing certain acts on or to his property and for the benefit of some
other person. The only rights of this kind recognised by Roman law are
servitus, emphyteusis, superficies, pignus:
such rights are called
jure in re aliena; they
are protected, like
dominium, by actions
in rem: their nature is more fully
explained under the head of
SERVITUS Ownership is in its nature single and entire; consequently
the same thing cannot belong to several separate owners, but several persons
may be joint
domini or owners of one thing.
The subject of ownership comprehends the determination of the things which
may be the objects of ownership: the power which a man may have over such
objects, both as to duration of time and extent of enjoyment; the modes in
which ownership may be acquired and lost; the persons who are capable of
acquiring, transferring, or losing ownership. It is proposed to give some
account of each of these branches of the general subject.
1. Of the things which may be the objects of ownership.
Res is the general term for anything which is the object of a
right, whether it has an actual physical existence or only an existence in
thought. In this wide sense
res are divided
into
corporales and
incorporales. Res corporales are defined to be those
“quae tangi possunt,” i. e. physical objects;
incorporales are those “quae tangi non
possunt, sed in jure consistunt” --as
hereditas, ususfructus, obligationes.
The objects of
dominium are
res corporales. Res corporales are divided into
immobiles, or
solem et res
soli, and
mobiles.
The ground (
solum), and that which is attached
to the ground, as buildings and other fixtures, trees, and standing crops,
are
res immobiles. Res mobiles are things which
can be moved about from place to place or which move themselves (
res se moventes). The distinction between land and
movables is far less important in Roman law than in legal systems like our
own which have been influenced by feudalism.
Another division of
res is that between
res quae usa consumuntur, as food, and
res quae usu non consumuntur, or things capable of
being used again and again.
The class of
res quae pondere, numero, mensura
constant, consists of such things as wine, oil, corn, money, which
are of such a nature that any of the same number, weight, and measure may be
considered the same thing. The term
res fungibiles
has come to be used to denote this class of exchangeable things.
Things may be divided into simple, as an animal, a stone, and compound, i. e.
things made up of distinct parts, as a carriage, a ship.
A number of individual things, not mechanically connected, may for legal
purposes be regarded as one thing: a flock of sheep is an example of such a
universitas rerum distantium (
Dig. 41,
3,
30;
6,
1,
23.5).
Some things are appurtenant to others; that is, as subordinate things, they
go with that which forms the principal thing (
Dig.
18,
1,
49). For
instance, a conveyance of a house or a ship includes by implication all its
appurtenances.
Fructus are the products of a thing, as the
crops of a field.
Fructus sometimes includes
profits of a thing which are not produced by it, e. g. minerals taken from
the land.
Fructus is also used to signify profits derived
from the legal use to which a thing is put, as interest from a loan
(
quod non natura pervenit sed jure percipitur,
Dig. 6, tit. 1, 1. 62, § pr.).
Res communes omnium, quarum usus communis est
are objects of common use, which cannot be exclusively appropriated: such
are the air, the sea, the seashore, running water (
Inst. 2.1,
§ § 1-5).
Things capable in themselves of being objects of ownership might become
legally incapable of belonging to anyone on account of their appropriation
to some religious or quasi-religious purpose. Things which have this
character are called
res divini juris: there
are three classes of such
res, viz.
res sacrae, religiosae, and
sanctae (Gaius, 2.2-11).
Res publicae, res universitatis, are things
which belong to the state or to a public body; such
res are
commercio exemptae, i.e.
they cannot be acquired by individual owners as long as they retain their
public character.
Res privatae or
res
singulorum are things which are objects of individual
ownership. Not even citizens could have
dominium, i.e. Quiritarian ownership in provincial land; nor had
bonitary ownership any application to land out of Italy.
The
dominium of
provinciale
solum was considered to belong to the Roman people or to the
emperor (Gaius, 2.7). Nevertheless, individuals might enjoy rights in such
land analogous to those of a
dominus. The
division of land into
ager publicus and
privatus is noticed as existing in the
provinces (
Cic. Ver. 3.6); individuals could
only hold
ager publicus as lessees of the
state. The terms
possessio and
possessor were used for the tenancy and tenant of
ager publicus.
2. As to the powers which a man may have over objects of ownership.
An owner has, subject to general and special limitations, a right to the
possession and enjoyment of his property. It is necessary to distinguish the
owner's right to possess (
jus possidendi) from
the right of possession (
jus possessionis). The
right to possess belongs to the owner as such, the right of possession is
attached to possession as such, i. e. it is inherent in anyone who has
actual control of a thing, and the intention of exercising such control as
owner, whether he has a title to the ownership or not. [
POSSESSIO]
The
dominus of a thing could assert his right
[p. 1.653]to the possession of it by the action called
rei vindicatio. He could not bring this
action unless he was out of possession; and in order to succeed he must
prove his ownership. If the owner's rights were attached while he was in
possession, he could maintain the
actio
negatoria or
negativa in rem against
the aggressor. An owner who was disturbed in his possession could also
protect himself by means of the possessory interdicts. The
rei vindicatio could only be maintained by the
dominus ex jure Quiritium, and not by the
owner
in bonis [
BONA], for the praetor could not give a civil action
to one who had merely a praetorian title. An action, however, was framed,
which in the hands of the bonitary owner had the same effect as the
rei vindicatio: it was called
actio Publiciana in rem, and was based on the fiction that
the civil ownership had been already acquired by usucapion. A bonitary owner
might by this action recover the thing even from the Quiritary owner, and so
his position was superior to that of a
bonae fidei
possessor.
In respect to duration of interest and freedom of alienation the powers of a
dominus were as a rule unlimited.
3. Of the modes in which ownership may be acquired and lost.
A title to property may be acquired from some one previously entitled to it,
in which case it is called a succession, or a person may become owner
independently of anyone else.
A succession may be either universal （
successio per
universitatem) or singular (
res singulas
acquirere). A universal succession is the succession of one
person to the entire property of another: the several rights and duties of
which the property is composed do not, as in singular succession, pass to
the successor in a separate piecemeal manner, but are transferred with the
universitas or entirety. A person may
succeed
per universitatem to a living person,
as in the case where a person arrogates another, and so becomes entitled to
all the arrogated person's property (Gaius, 3.21); or to a deceased person,
as in the succession of a
heres to the entire
estate of another.
The different modes of universal succession are explained under other heads
[ADOPTIO; BONORUM EMPTIO; HERES; SUCCESSIO;
UNIVERSITAS].
The following remarks apply to the acquisition of single rights of ownership,
whether by way of succession or independently.
Acquisitiones were either
civiles, i.e. distinctively Roman in form, or
naturales (
ex jure gentium),
which were not accompanied by any particular formality.
One of the earliest civil titles of acquisition was that by which individuals
acquired from the state a title to booty taken from the enemy (
Gel. 7.4; cf. Mommsen,
R. Staatsr.
ii. (ed. 2), p. 538).
From an early period of Roman history the two civil forms of conveyance
called
in jure cessio and
mancipatio were in use.
In jure
cessio was a collusive assurance executed in the presence of the
magistrate: any kind of property might be transferred in this way, but the
conveyance by
mancipatio was preferred when it
was applicable, because it did not require the presence of a magistrate.
Mancipatio was a conveyance
per aes et libram, carried out by the parties in the presence
of a
libripens and five witnesses, who were
originally regarded as representing the five classes into which the Roman
people was divided: like all early conveyances, it is extremely formal in
its character.
Mancipation was used for conveying a certain class of
res, called
res mancipi. Res mancipi
are
praedia in Italico sole, i.e. land in
Italy,
jura praediorum rusticorum or rural
servitudes, slaves, and four-footed animals, as oxen, horses, &c.,
quae collo dorsove domantur (Ulpian, 19.1;
Gaius, 2.15-17). All other things are
res nec
mancipi.
The civil ownership of
res mancipi could only be
conveyed by
in jure cessio or
mancipatio, whereas
res nec
mancipi passed from one owner to another by
traditio or delivery.
Usucapion is a civil title by which a person who has possessed a thing for a
prescribed time and under particular conditions becomes owner of it [
USUCAPIO].
Adjudicatio is the assignment of property to a
person by the award of a
judex: such awards
were made in partition and boundary suits (
tria judicia
divisoria. See
ACTIO p.
17
b).
Lex is a title by which property devolves on a
person by operation of a rule of law without any act of the party acquiring:
a person on whom a lapsed legacy (
caducum）
devolves acquires under this title.
Traditio is a conveyance of property according
to the
jus gentium; it consists in the alienor
delivering a thing to the alienee with the intention of making the latter
owner of it. There must be a
justa causa for
the delivery, i. e. some ground suitable for transferring ownership, as
emptio, venditio or
donatio. The other natural modes of acquiring are explained
under particular heads [OCCUPATIO; ACCESSIO; ALLUVIO;
SPECIFICATIO; CONFUSIO].
Praetorian ownership was acquired by
traditio of
a
res mancipi, by acquiring the property of an
inheritance under the praetorian title of
bonorum
possessio, and by purchase of an insolvent debtor's property
(
bonorum emptio). Subsequent to the time of
the classical jurists some important changes were made in the law as to the
modes of acquiring ownership. The forms of
in jure
cessio and
mancipatio became
obsolete, and the civil ownership of all
res
was transferred by
traditio. Justinian
abolished the distinctions between
res mancipi
and
nec mancipi, and between bonitary and
Quiritary ownership. He also altered the law of usucapion, making a uniform
law on the subject applicable to
solum
provinciale and
Italicum.
Ownership is lost either with or without the consent of the owner. With the
consent, when he transferred it to another, which was the general mode of
acquiring and losing property; without the consent, when the thing perished,
when it became the property of another by accession, specification, or
usucapion, when it was judicially declared to be the property of another, or
forfeited after having been pledged. It is also lost by
maxima capitis deminutio. The
media
capitis deminutio only effected an incapacity for Quiritarian
ownership; but if it was a consequence of a capital crime, the property of
the person convicted was forfeited to the state.
[p. 1.654]
4. As to the persons who are capable of acquiring or losing ownership.
Juristic persons (
universitates personarum) as well
as natural persons might be owners. Only persons who had the
jus commercii could acquire Quiritary or bonitary
ownership. Persons in the power of another, whether free persons or slaves,
could not acquire for themselves, but what they acquired belonged to the
person in whose power they were. In course of time, however, the
acquisitions of
filiusfamilias were protected from
the interference of
paterfamilias, except such
acquisitions as were derived from the
paterfamilias
himself (
peculium). If a slave was a man's
in bonis, everything that the slave
acquired belonged to the owner
in bonis, and
not to him who had the bare Quiritarian ownership [
BONA]. The usufructuary of a slave only acquired the
ownership of that which the slave acquired
ex operis
suis.
Pupilli could acquire property, but could not
alienate without the
auctoritas of their tutor.
Property of some persons could not become the property of another by
usucapion, e. g. the property of
pupilli could
not be acquired by usucapion; a fact which Cicero was surprised that his
friend Atticus did not know (
ad Att. 1.5).
(
Inst. ii. tit. 1.6-9;
Dig. 41,
1; Ulp.
Fragm. tit. xix.;
Gesterding,
Ausführliche Darstellung der Lehre von
Eigenthum; K. Sell,
Römische Lehre der
dinglichen Rechte; Windscheid,
Pandekten,
§ 167, &c.; Puchta,
Inst. § 231,
&c.)
[
G.L] [
E.A.W]
