Summary Roman Law 271 - The Law of Things

CHAPTER 6 - INTERESTS IN PROPERTY
6.1 – The classification of property


6.1.1 - Corporeal and incorporeal things

 ‘Res’ = originally a ‘thing’ in the sense of a physical object.
 Later = much wider meaning: Any asset that had economic value.  Thus, also
included incorporeal things.
 A corporeal thing = material thing – can be touched
 An incorporeal thing = immaterial thing – cannot be touched (e.g. inheritance,
obligations, limited rights over property belonging to another person 
servitudes)
 NB: Only corporeal things could be possessed or could be subject of
acquisition of ownership through usucapio.

6.1.2 - Public and private things

 Things were classified according to whether they could be privately owned or
not.
 There was a variety of things that could not be privately owned  Public
things:

6.1.2.1 - Res communes

 Things common to all men  e.g. air/running water/sea/etc.
 Could be enjoyed, not owned.

6.1.2.2 - Res publicae

 ‘Public’ things – belonged to the State  e.g. public roads/bridges/etc.
 NB public thing = provincial land (Land in the provinces outside Italy)


6.1.2.3 - Res universitatis

 Things that were intended for public use, owned by corporate public bodies
such as colonies and municipalities.
 E.g. Public streets, buildings, theatres, etc.

,6.1.2.4 - Res nullius

 Things that belonged to no-one.
 Included wild animals, abandoned property, and ‘divine’ things.

(a) Res sanctae

 Things considered to be protected by the gods to whom they were
consecrated, crucial to the safety of Rome.
 E.g. City walls and gates.
 Anyone who violated them was subject to heavy criminal sanctions. (Including
the death penalty in some cases)

(b) Res religiosae

 Tombs/land used for burial/etc.
 Certain conditions had to be satisfied before burial ground was classed as
‘religious’

(c) Res sacrae

 Things formally consecrated and dedicated to the gods
 E.g. Temples/shrines/sacred groves
 Churches! – After the conversion to Christianity.



NB: Certain res nullius could fall into private ownership  Thereafter ceased to be
res nullius.

6.1.2.5 - The seashore

 Lacked a clear legal identity.
 Differing opinions.


6.1.3 - Movables and immovables

 Movables = permanent attachments  E.g. land
 Land = Italic land (res mancipi) or provincial land.

6.1.4 - Fungibles and non-fungibles

,  Fungibles = Things that existed in quantities, rather than as separate entities.
 E.g. Money/grain
 Usually consumed through use.
 Non-fungibles = Things which had a separate identity and a degree of
permanence  E.g. A book/land/a chariot
 Distinction NB in the law of contract.
 Sale of fungibles = stipulatio
 Sale of non-fungibles = emptio venditio

6.1.5 – Res mobiles and res immobiles

 Relevant for prescription, for possessory interdicts, and the constitution of
servitudes.

6.1.6 – Divisible and indivisible

 Relevant for division of property held in co-ownership.

6.1.7 - Res mancipi and res nec mancipi

 Most NB classification of property in archaic Roman Law.
 Rome’s earliest period – Justinian’s abolishment of it.
 NB classification in the conveyance of property
 Res mancipi = Slaves, beasts of burden, Italic land, houses on such land, and
rustic praedial servitudes.
 Dispute about when animals became res mancipi.
 Why was there reluctance to expand the list of res mancipi? = The formal
modes of conveyancing necessary to transfer dominium in such things
increasingly came to be seen as cumbersome and inconvenient.
 Res mancipi = ‘Those things which had to be conveyed by mancipatio or
cession in order for dominium to pass’
 Res mancipi = ‘Things useful or essential to household in early Roman society’.
 Res nec mancipi = All other things.
= Did not need to be conveyed by the formal modes of conveyance = simple
delivery (tradition) sufficed to pass full title
 NB: Distinction became less important as time progressed.

6.2 – Ownership
6.2.1 – Introduction