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20 Cards in this Set
- Front
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What did the phrase bonitary owner come into use ? who was the bonitary owner ? When did the concept come into existence What was he before this |
terminology not used until Byzantine law Someone who possesses a res mancipi - He only became a bonitary owner after thepraetor introduced actio publiciana and the exceptio doli. - gives him protection against the owners vindicatio Before he was just apossessor pending usucapio. |
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What does the existence of the bonitary owner mean ? Does he challenge the inviolability of the dominus |
The bonitary possessor means that the dominus does not have absolute enjoyment anymore. The bonitary owner can win in actions against the dominus it doesn’t change the invioability since the bonitary owner gets his actions from the acts of the dominus. |
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Does Gaius refer to the bonitary owner as an owner ? Who can bring a vindicatio ? Is it a permanant interference with ownership |
Bonitary ownership Gaius is not prepared to call the bonitary owner the dominus. it is still only the dominus who can bring a vindicatio. The bonitary owner can only bring a ficitous vindicatio. It doesn’t really challenge the residual sense since it is only a temporary interference with the norm. - he is on his way to being a full owner of the thing |
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Who was the bona fide possessor How did one become a bona fide passessor Could the bona fide possessor use the actio publicana |
Someone on their way to usucapio they had bought/ acquired the object and had been in good faith at the time of acquisition works against everyone but the dominus. |
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If the dominus wanted to could he just take the thing back ? |
The dominus cannot just come and take the thing from the bona fides poessessor. The dominus needs to bring a possessory interdict because he can get the thing back. |
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Reasons why roman ownership is absolute litigation point ? Dominus ? bonitary owner ? Bona fide possessor |
Supreme/dominant: always winslitigation, the dominus will always win in litigation, he has the true and only title to the thing in question. Bonitaryownership challenges this, since an exceptio rei venditae et traditae. However you could say that this comes from the owner, as them selling the thing to the bonitary owner allows them to use this eceptio Bona fide possession does not challenge it- he cannot win in the actio publicana against the dominus |
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Reasons why roman ownership is inviolable Does bonitary ownership challenge this Does bona fide possession challenge this |
Inviolable: it can only be lost byvoluntary alienation - Bonitaryownership does not challenge this - The dominus choose to sell the thing to him Bona fidepossession challenges this- the dominus will lose ownership of the thing when the other party completes usucapio. He did not allow this and it will occur without his assent. . However, the dominus also has himselfto blame for not enquiring into the whereabouts of his stolen property. This would occur after xx |
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What way was roman ownership absolute - How could the dominus use it ? Did the bonitary owner's right to use and abuse take away from his ? What about the bona fides possessor ? |
Unrestricted (subject to others’ enjoyment of theirs) enjoyment: use, abuse, fruits. He was restricted by things like the praedial servitudes for example Enjoymentcannot be reclaimed by the dominus in the case of bonitary ownership, on theother hand it was voluntary, and often in exchange for payment whichcompensates for lack of enjoyment. Enjoyment can be reclaimed in the case of bonafide possession, and there the owner did not voluntarily part with his propertyin exchange for something. |
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How was Roman ownership absolute, in terms of it being unique ? |
only one person can be dominus (co-ownershipdivides it, there is only ‘one’ ownershipof each thing). It is not relative (in practice, it could be, since there wasuncertainty in ownership). Not justtitle, also procedural: only dominus can win a vindicatio (not in practice) |
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It was absolute in terms of the dominium being the root of all titles What challenges this ? |
Origin of other rights: any otherrights derive from dominium. They lie ‘through’ the dominus.- Eg. usufruct,usus etc. - The rights ofthe bonitary owner are detached from the dominus, they are derived from hispossession of the property. - Bona fidepossession also challenges. His rights are also derived from his possession ofthe property. |
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How is roman ownership absolute in terms of it being residual ? bonitary owner? Bona fide possessor |
when all other rights disappear,ownership remains. Permanent: other rights are temporary. you cant get rid of the title when you strip away all temporary titles you are left with dominium Bonitary ownership: one/two (three/ten) years ofcoexistence, after which ownership stands alone again. |
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How is roman ownership absolute in terms of it being aspirational ? |
everyone wants to achieve dominiumus. The bonitary owner is only this on his way to being dominus. He has no desire to be the bonitary owner for ever same with the bona fide possessor Possession = ‘behaving like an owner’, it is described withreference to ownership. - Contrast to borrower, who recognises the rights of thedominus Usucapio: aspirational. These two emphasise, ratherthan challenge, this concept |
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When you are talking about division of ownership what are the two possible concepts of ownership you mean ? |
Ownership can be either the roman legal conceptof ownership generally, and whether it was divided over time. - It can also be a PARTICULAR ownership in acertain context, eg. A owns a slave, and whether his particular ownership couldbe divided. |
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Does co ownership divide the two possible senses of ownership ? What about bonitary possession ? |
Co-ownership does not divide the general conceptof ownership, since it is just a matter of two people sharing that concept,which remains unchanged. But it can divide a particular ownership A bonitary ownership can arguably divide both.The legal title over the slave is held by A, but the exclusive right toenjoyment and unqualified retention/actionability is held by B, the bonitaryowner |
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How can a particular ownership of a thing be divided ? When ownership is transferred to the bonitary owner what happens to the dominus's physical ownership ? What about the usufruct ? |
- Dominium =unlimited (almost) enjoyment/use/abuse. Bonitary ownership (through actio publiciana)= unlimited (subject to same limitations as dominium) enjoyment/use/abuse. Theentire physical part of the dominium of the slave is absorbed into B’s bonitary ownership. - Same principle in a more limited way: usufruct, longitemporis praescripto - Co-ownership of the slave divides both theenjoyment/use/abuse and the legal title equally. |
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In practice was ownership divisible ? |
- - Bonitaryownership = dominium- Emphyteusis = perpetual lease, no eviction, same rightsas owner (but province so no quiritary dominium) = dominium |
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In theory was ownership divisible |
- - No one butdominus is recognised as dominus (despite Roman law based on remedies) = legalconcept is very strong- Bonitary ‘owner’: term only used in 500s AD- This couldapply both to legal concept and any particular situation of ownership. In particular ownership, rights derive from consentingdominus |
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Devolopment of roman law for different res holders Bona fide possessor at first |
Possession + usucapio did not have any specialrights, only possessory interdict. - If the res is taken from A by B and given toC, A has no remedy. - If taken back by owner by a vindicatio, A hasno remedy - He is vulnerable unless he conducts mancipatio |
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Devolopment of roman law for different res holders Actio publicana Peregrine owners |
Provides him protection Until lex antoniniana 212 AD peregrine ownershipwas recognised as somewhat equivalent to ownership in provincial contexts.Roman law is practical (vindicatio and possessory interdicts created dominiumand possession), so probably a fictitious vindicatio |
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What about provincal land |
- Vested in populus or emperor (in the republic,managed by the senate, and from principate onward the imperial office). - Diocletian(292AD) removed distinction between provincial and italic land |
