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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]

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