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p1217 Usucapio

Article by George Long, M.A., Fellow of Trinity College
on pp1217‑1221 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

USUCAPIO. The history of Usucapio is an important fact in the history of Roman Jurisprudence. Usucapio is the acquisition of Quiritarian ownership by continuous possession; consequently, it is not possible in the case of a Peregrinus nor is it applicable to provincial land.

Gaius (II.40‑42) states that there was originally in Rome only one kind of ownership: a person was either owner of a thing Ex jure Quiritium, or he was not owner at all. But afterwards ownership was divided, so that one man might be owner Ex jure Quiritium, and another might have the same thing In bonis, that is, have the right to the exclusive enjoyment of it. He then goes on to give an instance of the mode in which the divided ownership might arise by reference to the transfer of a Res Mancipi: if such a thing was transferred by bare tradition, and there was neither Mancipatio nor In jure cessio, the new owner only acquired the natural ownership, as some would call it, or only had it In bonis, and the original owner retained the Quiritarian ownership until the purchaser acquired the Quiritarian ownership by Usucapio (possidendo usucapiat); for when the Usucapio was completed, the effect was the same as if the thing had been originally mancipated or transferred by the In jure cessio. Gaius adds, "in the case of moveable things the Usucapio is completed in a year, but in the case of a fundus or aedes two years are required; and so it is provided by the Twelve Tables."

In this passage he is evidently speaking of Res Mancipi only, and of them only when transferred to the purchaser by the owner without the forms of Mancipatio or in Jure Cessio. From this then it might be safely concluded that the Twelve Tables provided a remedy for defective modes of conveyance of Res Mancipi from the owner; and this is all that could be concluded from this passage. But a passage which immediately follows shows that this was all that the Twelve Tables did; for Gaius (II.43) proceeds to say, "But (Ceterum) there may be Usucapio even in the case of those things which have come to us by tradition from a person who was not the owner, whether they are Res Mancipi or not, provided we have received them bona fide, believing that he who delivered (qui tradiderit) them to us was the owner. And this rule of law seems to have been established, in order that the ownership of things might not be long in uncertainty, seeing that one or two years would be quite sufficient for the owner to look after his property, that being the time allowed to the Possessor for Usucapio."

The reason for limiting the owner to one or two years has little force in it and possibly no historical truth; but it is clear from this passage that this application of the rule of Usucapio was formed from analogy to the rule of the Twelve Tables, and that it was not contained in them. The limitation of the time of Usucapio is clearly due to p1218that Twelve Tables, and the time applied only to purchases of the Res Mancipi from the owner, when the legal forms of conveyance had been neglected. But the origin of Usucapio was probably still more remote.

When Gaius states that there was originally only one kind of ownership at Rome, and that afterwards ownership was divided, he immediately shows how this arose by taking the case of a Res Mancipi. This division of ownership rested on the division of things into Res Mancipi and Res Nec Mancipi, a distinction that had reference to nothing else than the mode of transferring the property of them. Things were merely called Res Mancipi, because the ownership of them could not be transferred without Mancipatio. Things were Res nec Mancipi, the alienation of which could be effected without Mancipatio. There could be no division of things into Mancipi and Nec mancipi, except by determining what things should be Res Mancipi. Res nec Mancipi are determined negatively: they are all things that are not Res Mancipi. But the negative determination pre-supposes the positive. Therefore Res Mancipi were determined before Res nec Mancipi could be determined; and before the Res Mancipi were determined, there was no distinction of things into Res Mancipi and Res nec Mancipi. But this distinction, as such, only affected the condition of those things to which it had a direct application: consequently all other things remained as they were before. The conclusion then is certain, that the Res Mancipi as a class of things were posterior in order of time to the class of Res nec Mancipi, which comprehended all things except Res Mancipi. Until then the class of Res Mancipi was established, all property at Rome could be alienated by tradition, as Res nec Mancipi could be alienated by tradition after the class of Res Mancipi was constituted.

The time when the class of Res Mancipi was formed is not known; but it is most consistent with all that we know to suppose that it existed before the Twelve Tables. If we consider the forms of Mancipatio[Mancipatio], we cannot believe that they arose in any other way than by positive enactment. As soon as the forms of Mancipatio and of the In jure cessio (which from its character must be posterior to Mancipatio) were established, it followed that mere tradition of a thing to a purchaser and payment of the purchase-money, could not transfer the ownership of a Res Mancipi. The transfer gave the purchaser merely a Possessio, and the original owner retained the property. In course of time the purchaser obtained the Publicana actio, and from this time it might be said that a double ownership existed in the same thing.

The introduction of Mancipatio, which gave rise to the double ownership, was also followed by the introduction of Usucapio. The bona fide Possessor of a Res Mancipi which had not been transferred by Mancipatio, had no legal defence against the owner who claimed the thing. But he had the exceptio doli, and subsequently the Exceptio rei venditae et traditae by which he could protect himself against the owner; and as Possessor simply he had the protection of the Interdict against third persons. He had the full enjoyment of the thing, and he could transfer the possessio, but he could do no act with respect to it for which Quiritarian ownership was necessary; consequently he could not alienate it by Mancipatio or In jure cessio, and it was a necessary consequence that he could not dispose of it by Testament in the same way in which Quiritarian ownership was disposed of by Testament. The necessity for such a rule as that of Usucapio was evident, but it could arise in no other way than by positive enactment, for its effect was to be the same as that of Mancipatio. The Twelve Tables fixed the term of Usucapio, but we do not know whether they fixed or merely confirmed the rule of law as to Usucapio.

It is a mistake to suppose that tradition or delivery was a part of Mancipatio as such. Mancipatio was merely a form of transferring ownership which was fixed by law, and the characteristic of which was publicity: a delivery of the things would of course generally follow, but it was no part of the transfer of ownership. Land (praedia) for instance could be mancipated without delivery (in absentia mancipari solent, Ulp. Frag. tit. 18; Gaius, I.121). In the case of moveable things, it was necessary that they should be present, not for the purpose of delivery, but that the thing mancipated might be identified by apprehension. The essential to the transfer of ownership in all countries, is the consent of two persons, who have legal capacity to consent, the seller and the buyer. All the rest is form that may be varied infinitely: this consent is the substance. Yet tradition as a form of transfer was undoubtedly the old Roman form, and consent alone was not sufficient; and it may be admitted that consent alone was never sufficient for the transfer of ownership without affecting the principle laid down that consent alone is essential in the transfer of ownership. This apparent incongruity is ingeniously and sufficiently explained in the following manner: "Tradition owes its origin to a time when men could not sufficiently separate in their minds Physical ownership, or the dominium over a thing, from Legal ownership. As a man can only call a bird in the air or a wild animal in the forest his own when he has caught it; so men thought that tradition must be added to contract in order to enable a man to claim the thing as his own." (Engelbach, Ueber die Usucapion, &c. p60.)

Besides the case of property there might be Usucapio in the case of Servitutes, Marriage, and Hereditas. But as Servitutes praediorum rusticorum could only be the objects of Mancipatio and could only be established by the same form by which ownership of Res Mancipi was transferred, so according to the old law, these Servitutes alone could be the object of Usucapio; and, as it is contended by Engelbach, only in the case of Aquaeductus, Haustus, Iter and Actus. But as the ownership of Res Mancipi could be acquired by bare tradition followed by usucapio, so these servitutes could be established by contract and could be fully acquired by Usucapio. In the later Roman law, when the form of Mancipatio was replaced by mere tradition, servitutes could be established per pacta et stipulationes only. In the case of a Marriage Coemptione, the form of Mancipatio was used, and the effect was that the woman came into the hand of her husband, and became part of his Familia. The marriage Usu could not of itself effect this, but if the woman lived with her husband a year, she passed into his Familia by Usucapio (velut annua possessione usucapiebatur): and accordingly it was provided by the laws of the Twelve Tables, that if p1219she did not wish thus to come into her husband's hand, she must in every year absent herself from him for three nights in order to interrupt the usus (Gaius, I.110). Thus Usucapio added to Usus produced the effect of Coemptio. In the case of the Hereditas, when the testator had the testamenti factio, and had disposed of his property without observing the forms of Mancipatio and Nuncupatio, the person whom he had named his heres, could obtain the legal ownership of the hereditas by Usucapio (Gaius, II.54). In all these cases then the old law as to Usucapio was this: when the positive law had required the forms of Mancipatio in order that a certain end should be effected, Usucapio supplied the defect of form, by converting a possessio (subsequently called In bonis) into Dominium ex jure Quiritium. Usucapio then was not originally a mode of acquisition, but it was a mode by which a defect in the mode of acquisition was supplied, and this defect was supplied by the use of the thing, or the exercise of the right. The end of Usucapio was to combine the beneficial with the Quiritarian ownership of a thing. Accordingly the original name for Usucapio was Usus Auctoritas, the auctoritas of usus or that which fives to Usus its efficacy and completeness, a sense of Auctoritas which is common in the Roman Law. Some say that usus auctoritas is usus et auctoritas (Cic. Pro Caecin. 19) [Auctoritas; Tutela.] But Usus alone never signifies Usucapio; and consistently with this, in those cases where there could be no Usucapio, the Roman writers speak of Usus only. Possessio is the Usus of a piece of ground as opposed to the ownership of it; and the term Usus was applied to the enjoyment of land of which a man either had not the ownership or of which he could not have the ownership, as the Ager publicus. In the later law, as it is known to us in the Pandect, Usucapio was a mode of acquiring ownership, the term Usus Auctoritas was replaced by the phrase Usu Capere, and in the place of Usucapio sometimes the phrase "possessione or longa possessione capere" occurs; but Possessio alone never is used for Usucapio. In order to establish the title by Usucapio, the Possession must be continuous or uninterrupted during the whole Usucapion. If there was an interruption of the Possession (usurpatio), and the Possession was acquired again, this was the commencement of a new Usucapio. The possession must also have a legal origin, without which the possession would have no effect. The possessor must be able to show an origin of his possession which would give him at least bonitarian ownership: this was called justa causa possessionis, titulus usucapionis. The causa might be a bargain and sale, a gift (donatio), a legacy and others.

It appears from a passage of Gaius already quoted, that in his time Usucapio was a regular mode of acquisition, which was applicable to things which had come to a man by tradition from one who was not the owner, and was applicable both to Res Mancipi and Nec Mancipi, if the possessor acquired the possession of them bona fide, that is, for instance, if he believed that he brought them from the owner. There were however some exceptions to this rule: a man could never acquire the ownership of a stolen thing by Usucapio, for the Twelve Tables prevented it, and the Lex Julia et Plautia prevented Usucapio in the case of a thing Vi possessa. The meaning of the law was not that the thief or robber could not acquire the ownership by Usucapio, for the mala fides in which their possession originated was an obstacle to the Usucapio, but no person who bona fide bought the thing that was stolen or vi possessa, could acquire the ownership by Usucapio (Gaius, II.45). According to other authorities the rule as to a stolen thing was established by the Lex Atinia. Provincial lands also were not objects of Usucapio.

If a woman was in the tutela of her agnati, her Res Mancipi could not be objects of Usucapio, unless they had been received from her by traditio with the auctoritas of her tutor; and this was a provision of the Twelve Tables. The legal incapacity of the woman to transfer ownership by Mancipatio must be the origin of this rule. The property of a woman who was in Tutela legitima could not be an object of Usucapio, as Cicero explains to Atticus (de tutela legitima nihil usucapi posse, ad Att. I.5). The foundation of this rule, according to some, was the legal incapacity of a woman who was in the tutela of her Agnati, to make a will [Testamentum; but see Tutela.]

In order to acquire by usucapio, a person must have the capacity of Roman ownership; consequently all persons were excluded from acquiring by Usucapio who had not the Commercium. The passage quoted by Cicero (de Offic. I.12) from the Twelve Tables, "adversum hostem (i.e. peregrinum) aeterna auctoritas," is alleged in support of this rule of law; that is, a Peregrinus may have the use of a Res Mancipi which has been transferred by traditio, but he can never acquire anything more by Usucapio.

Things could not be objects of Usucapio, which were not objects of Commercium. Accordingly all Res divini juris, such as temples and lands dedicated to the gods, and Res communes could not be objects of Usucapio. The Limits or bounds by which the Romanus Ager was marked out were consequently not objects of Usucapio, as to which there was a provision in the Twelve Tables (Cic. de Leg. I.21. "Quoniam usucapionem intra quinque pedes esse noluerunt"). The Quinque pedes are the limites linearii, the breadth of which was fixed at five feet by a Lex Mamilia. The approach to a sepulchre was also not an object of Usucapio. Free men could not be objects of Usucapio (Gaius, II.48).

In the time of Gaius (II.51) a man might take possession of another person's land, provided he used no force (vis), the possession of which was vacant either from the carelessness of the owner, or because the owner had died without a Successor [Successio], or had been long absent; and if he transferred the field to a bona fide purchaser, the purchaser could acquire the Quiritarian ownership by Usucapio, even though the seller knew that the field was not his own. This rule was established against the opinion of those who contended that a Fundus could be Furtivus or an object of theft. But a man might in some cases acquire by Usucapio the ownership of a thing which he knew to be not his own: as if a man had possession of a thing belonging to the hereditas, of which the heres had never acquired the possession, provided it was a thing that could be an object of Usucapio. This species of possessio and usucapio was called Pro herede: and even things immovable (quae solo continentur) could be thus acquired by one year's usucapio. The reason was this: the Twelve Tables p1220declared that the ownership of res soli could be acquired by usucapio in two years, and all other things in one year: now as the hereditas was not a res soli it must be included in the "other things," and it was further determined that the several things which made up the hereditas must follow the rule as to the hereditas; and though the rule as to the hereditas was changed, it continued as to all the things comprised in it (Seneca De Benef. VI.5). The reason of this "improba possessio et usucapio," says Gaius, was that the heres might be induced the sooner to take possession of the hereditas, and that there might be somebody to discharge the sacra, which in ancient times (illis temporibus) were very strictly observed; and also that there might be somebody against whom the creditors might make their demands. This kind of Possessio and Usucapio was called Lucrativa. In the time of Gaius it had ceased to exist, for a Senatusconsultum of Hadrian's time enabled the heres to recover that which had been acquired by Usucapio, just as if there had been no Usucapio; but in the case of a heres necessarius, the old rule still remained (Gaius, II.52‑58; Cic. Top. 6; Plin. Ep. V.1).

Gaius mentions a mode of acquisition under the name of Usureceptio. If a man mancipated a thing to a friend or transferred it by the In Jure Cessio, simply in order that the thing might be in his friend's safe keeping (fiduciae causa; quod tutius nostrae res apud eum essent), he had always a capacity for recovering it. In order to recover immediately the Quiritarian ownership of the thing, Remancipatio was necessary; but if the thing was transferred to him by traditio, the Remancipatio was completed by Usucapio, or as it is here called by Usureceptio: for Usureceptio differs in no respect from Usucapio, except that the person who acquires the Quiritarian ownership by Usus, in the one case acquires (capit), in the other re-acquires (recipit) the thing. In the case of a pignorated thing, the debtor's capacity to recover by Usureceptio was the same as in the case of Fiducia as soon as he had paid his debt to the creditor: and even if he had not paid the money and had obtained possession of the thing neither by hiring it from the creditor, nor precario, he had a lucrativa usucapio, which was a usureceptio and was probably formed from analogy to the lucrativa usucapio pro herede.

Servitutes praediorum rusticorum were established, at least according to the old law, by Mancipatio: the right to the Servitutes could only be properly extinguished by a Remancipatio. If the Servitus was extinguished by mere agreement, there must be a usureceptio on the part of the owner of the servient tenement in order to complete its legal release from the Servitus. In order that the possession of the libertas of the servient land might be enjoyed uninterruptedly for two years, there must be for the same time a total abstinence from all exercise of the right on the part of him who had the servitus. Subsequently, it was considered sufficient it the person entitled to the Servitus did not exercise his right for two years.

When usucapio was established as a means of giving the Quiritarian ownership to him who had acquired a thing In bonis, the form of mancipatio must have gradually lost its importance, and Usucapio came to be viewed as a mode of acquisition. Accordingly, it has been already observed, it became applicable to all cases of bona fide possession, whether the thing was a Res Mancipi or not. Formerly if a will had been made in due form except as to Mancipation and Nuncupation, the heres acquired the hereditas by Usucapio; but with the introduction of the Praetorian Testament [Testamentum.] and the Bonorum Possessio, the Bonorum Possessor obtained the right to actiones fictitiae or utiles in all cases where the deceased had a right of action, and he acquired by Usucapio the Quiritarian ownership of the several things which were included in the hereditas. In course of time it came to be considered by the jurists as a rule of law that there could be no Usucapio of an hereditas (Gaius, II.54). In like manner in the case of Servitutes established by contract, the introduction of the Actio Publicana rendered the doctrine of Usucapio unnecessary, and a Scribonia Lex is mentioned which repealed all Usucapio of Servitutes (Dig.41 tit. 3 s4 § 29). But this Lex only applied to the establishment of servitutes; it did not affect that Usucapio by which the freedom of a servient piece of land was effected. It became a maxim of law: servitutes praediorum rusticorum non utendo amittuntur, which, viewed with respect to the servient land, was a Usureceptio. In this sense "usurpata recipitur" seems to be used in a passage of Paulus (S.R. I. tit. 17 s2). "Usurpari" is commonly used in the sense of "uti," and in this passage of Paulus "usurpata recipitur" seems equivalent to "usu recipitur;" though this is not the meaning that has usually been given to this passage.

In the case of marriage all Usucapio fell into disuse (Gaius, I.111).

But in other respects usucapio subsisted. He who had acquired a Res Mancipi by tradition, had now a Praetorian ownership, and he had a right of action in respect of this ownership, which was analogous to the Rei Vindicatio. But Usucapio was still necessary to give him Quiritarian ownership and its consequent advantages. The distinction between Res Mancipi and Nec Mancipi existed, and as a consequence the Testamentum per aes et libram subsisted at the same time with the Praetorian Testament.

When finally all distinction was abolished between Res Mancipi and Nec Mancipi, and the ownership of all things could be acquired by Traditio and Occupatio, that kind of Usucapio ceased by which a thing In bonis became a man's Ex Jure Quiritium. All Usucapio was now the same, and its general definition became "adjectio dominii per continuationem possessionis temporis lege definiti" (Dig.41 tit. 3 s2, De Usurpationibus et Usucapionibus). By a constitution of Justinian (Inst. 2 6, De Usucapionibus et longi temporis possessionibus) it was enacted that there might be usucapion of Res Mobiles in three years, and of Res Immobiles "per longi temporis possessionem," which is explained to be ten years "inter praesentes," and twenty years "inter absentes;" and this applied to the whole Roman empire; but the conditions of "justus titulus," "bona fides," and the capability to be an object of usucapion were still required. The absence of a justus titulus or the fact of the thing being not capable of usucapion, did not deprive the possessor of the title by usucapion, but a possession of thirty, or p1221in some cases, forty years was required. From this time the terms Usucapio and Longi temporis praescriptio, were used indifferently, as some writers suppose, though on this point there is not uniformity of opinion.

(Engelbach, Ueber die Usucapion zur Zeit der Zwölf Tafeln, Marburg 1828; Mühlenbruch, Doctrin. Pandect. § 261, &c.; Ueber die Usucapio pro herede von Arndts, Rhein. Mus. für Jurisprudenz, vol. II p125; Puchta, Inst. II § 239.)


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