Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA
.pdfy6 LAW OF PROPERTY
go so far as to say that success or failure in either is no bar to success or failure in the other. On the other hand in English law, at any rate in the law of moveables, there is hardly such a thing as ownership. All we have is successive possessions, accompanied by titles of varying efficacy. Thus we get the paradox that in English law, where possession has to a very great extent to do the work done by ownership in other systems, possession bears hardly any resemblance to ownership, whereas in Roman law, where ownership and possession are very closely akin, they are made to perform very different functions, and the jurists are at the utmost pains to differentiate them. Perhaps there is a suspicion that this differentiation was necessary in order to avoid a confusion which is hardly possible in English law.
Moreover when one reflects on the probable course of Roman litigation, one begins to wonder whether. this dichotomy is not something mainly doctrinal, and insisted on without any real regard for the realities of practice.
How did a plaintiff in a vindicatio prove his case ? It is hard to believe that he merely appealed to reputation of ownership. Wherever there was any real difficulty—and one may presume that it was only in such cases that the plaintiff would be put to his vindicatio—he would have to show that he had usucaped the property. So far as land is concerned, this would, in early classical times, cause little difficulty, for land could not be stolen, and there are many ways in which land could come into the possession of a non-owner without any violence on his part or on the part of any other person. But for moveables there would be very great difficulty. Indeed Gaius says1 it is nearly impossible for a bonafide possessor—as opposed to a bonitary owner—to acquire moveables by usucapion. Thus one must face the fact that in any vindication of moveables a title set up might just as well be defeasible as indefeasible; and
1 G. 2. 50.
PROPERTY AND POSSESSION |
77 |
that even where the thing claimed was land, the chances that the title would be defeasible were by no means negligible.
Thus the notion of absolute ownership must have been something of a fraud, only saved from public shame by the facts that a very large proportion of moveables which have any earmark are consumed by use, and that a large proportion of the residue are transformed by specification or merged in something else by accessio. One is sometimes tempted to think that most Roman moveables that had preserved their existence and identity over a long period must at one time or another have been stolen, and much must have depended on the practical impossibility of proving theft in a large majority of cases; but this is not what one usually means when one uses the term ' absolute \ What seems to have happened is that the Romans started from a very simple and childish distinction between meum and tuum> and that in very early times they did really have a system of usucapio which conferred an absolute title in a very short time; but that having excluded usucapio of stolen goods for very obvious reasons, they did not face the fact that the absolute ownership in which they had been dealing had become fallacious. In other words they became the victims of their rather blunt intellectual methods. One must not attribute to Roman jurists of any age the sharp perception and ruthless logic of a nineteenthcentury German metaphysician. For the Romans, if they had ever used the term in this connexion, * absolute' must have meant 'absolute for most practical purposes'.
In one very important respect Roman and English law unite in differing from most modern civil law systems. Both adhere to the maxim 'nemo dat quod non habet'. In other words a non-owner cannot confer a title of ownership. English law has, it is true, made certain inroads on this principle by the Factors Acts,1 and by certain provisions of the Sale of Goods Act,2 but on the whole it has been strict.
1 Consolidated in the Factors Act, 1889. |
2 I^93, ss. 21-26. |
78 |
LAW OF PROPERTY |
Roman law admitted of no exceptions—the power of a pledgee to sell the thing pledged to him is no true exception, for he had the pledgor's authority, at any rate in earlier times—though in some cases the law of usucapion may have operated to cure defective titles in an exceptionally short time. However this is not the law in most continental countries of the present day. The prevailing principle is that a possessor can give a good title to a bona fide purchaser for value. Two exceptions are usually found, namely that a person who has lost goods, or had them stolen, may vindicate them in the short period of one year, though even within that year he may lose them irrevocably if they are sold by auction or in open market.1 It seems very probable that these exceptions were, to some extent, derived from Roman law, for when the general doctrine was received into French law in the early part of the eighteenth century, an attempt was made by the civilians to reconcile it with Roman law by saying that what took place was an immediate usucapion without lapse of time; and usucapion was of course impossible where the goods had been stolen. In any case the great field of application of the rule is in connexion with bailments. The continental bailee can normally confer ownership on a bona fide purchaser for value of goods. This is not only very un-Roman, but it is also very Un-English, for English law has clearly refused to make the most of the doctrine of estoppel.2
The nature of ownership in English law, if indeed the term be appropriate, cannot be understood without a discussion of the defence of ius tertii^ for if a defendant cannot set up against a plaintiff who is claiming a thing from him by virtue of a prior possession, the better right of a third party, then clearly the plaintiff, can succeed upon the basis of his better right (maius ius). If, on the other hand, the defendant can set up against the plaintiff the title of a third person under which he himself does not claim, the
1 French C.C., arts. 2279-2180. 2 See 65 L.Q.R. pp. 354-355.
PROPERTY AND POSSESSION |
79 |
better right of the plaintiff is not decisive. |
Now there is |
no doubt that in the Middle Ages the ius tertii could not be set up in defence to an action for recovery of either land or moveables. The question was always one of better right. However, towards the end of the seventeenth century new ideas came into play,1 and at the present day the defence of ius tertii can be set up at least in certain cases both where land and where moveables are concerned. There is great difficulty in ascertaining which those cases are, and this is not the place for a full discussion,2 but perhaps the position is as follows: Where the defendant is in peaceable possession of the thing claimed, so that the plaintiff must succeed on the strength of his right to possess, it is open to the defendant to set up the better title of a third person, even though he does not claim under that title.3 If, on the other hand, the defendant is not in peaceable possession of the thing claimed, that is to say where he is in possession by virtue of a trespass which he has committed against the plaintiff, then the plaintiff claims not in virtue of his right to possess, but merely of the possession which he had at the time of the defendant's trespass. Thus a plea of ius tertii would usually be inadmissible, because it would be irrelevant. It is obviously no defence to the plaintiff's claim that he possesses or possessed the thing to say that he has, or had, no right to possess. It seems, however, that at least where land is concerned, a defendant trespasser may still set up the defence of ius tertii) if that ius tertii appears upon the title which the plaintiff himself sets up in his pleadings.4
The effect of this mass of decisions is to differentiate clearly between possession and a right to possess. Actual
1Holdsworth, vii. pp. 424-431.
2See Salmond, Torts, 13th ed. pp. 172-3, 255, 278-281.
3But see now Allen v. Roughley (1955) 94 C.L.R. 98 where the High Court of Australia considered the defence of ius tertii to be more limited than Holdsworth had supposed.
4Radcliffe & Miles, Cases illustrating Principles ofLaw of Torts, p. 289. See Megarry & Wade, The Law of Real Property, 2nd ed. pp. 955-959.
8O |
LAW OF PROPERTY |
possession at the time of bringing the action, or at the time when the defendant committed a trespass against the plaintiff, does itself imply a right to possess, and moreover any previous possession implies a right to possess. Further it is not necessary for the plaintiff himself to prove that his right to possess is absolute: it is enough for him to prove that his right to possess is better than the defendant's right. But since it may be open to the defendant to prove that somebody else's right to possess is better than the plaintiff's, in that case what is in issue in an action based on title is the best right to possession, and if either the defendant or indeed the plaintiff himself in his pleadings shows that somebody else had a better title, then the plaintiff's title is clearly not the best in the world. For practical purposes it may therefore be said that English law recognises ownership, both of land and goods; and that the difference between Roman and English law is by no means so great as is stated in the text.
However there is still superficially a very considerable difference between the two systems, for the effect of usucapio is to confer a title on one who has possessed another's thing for the requisite period, whereas the effect of limitation in English law is only to cancel that other person's title. Hence the title of a disseisor or of a dispossessor in English law starts from the disseisin or dispossession, and its essential character does not change with the lapse of time. It is in every respect the same title as it was from the beginning. All that has happened is that a superior title has been destroyed. On the other hand in Roman law the title dates from the end of the period of usucapion. But the distinction is of importance mainly in connexion with covenants running with the land, and with the treatment of successive interests in land; and similar problems can hardly arise in Roman law. Where the same sort of question can be raised in both systems, it will be found that there is very little difference. Indeed, curiously enough the position of a Roman who was in
PROPERTY AND POSSESSION |
8l |
process of acquiring by usucapio, even though his title to dominium was still in the future, was better than would be the position of his English counterpart at the present day, for the Roman could sue almost exactly as if he had already completed usucapion: at any rate the defendant could not raise a plea of ius tertii\ whereas an English plaintiff who pleaded a possession that he had acquired from a nonowner at a time insufficiently remote to cancel the true owner's title would soon find the ius tertii set up against him. Moreover, as we have seen, although at first sight a Roman who was vindicating property would merely prove possession for the period required for usucapion, there was always a chance that the defendant might show that the thing had at some time or other been stolen; and it does not seem that the latter was under any obligation to show that it had been stolen from him or his predecessors in title. Thus even technically the plea of theft was not at all unlike the plea of ius tertii. In the end, therefore, it seems that there is not much to choose between the Roman and English conceptions of ownership, so far as the absolute nature of title is concerned, and indeed much of the technical detail is very similar. How far the changes in English law which appeared towards the end of the seventeenth century were due to Roman influences, it is very difficult to say.
The classical jurists had an extremely concentrated notion of ownership, that is to say, although they recognised that various people could own the same thing in common at the same time, they did not attempt any division of ownership as such. This excluded for instance anything in the nature of feudal tenure, under which the ownership of land could be split up between landlord and tenant: even in respect of leases, the landlord was full owner, and the tenant had only the benefit of an obligation. Similarly it excluded anything in the nature of a doctrine of estates, whereby the ownership of land could be divided
82 LAW OF PROPERTY
in respect of time, the tenant for life being no more owner than the reversioner, nor the reversioner than the tenant for life: in Roman law, if the technique of usufruct was adopted, the reversioner was full owner subject to an incumbrance in the hands of the usufructuary, and even if the device of fideicommissary substitution was employed, each successive holder was regarded as full owner. In classical law quite probably each owner had the full powers of alienation which usually belonged to an owner, and was merely bound by an obligation not to exercise them, so that one had to apply the maxim * quod fieri non debuit factum valet*. Finally there could be no distinction between the legal and equitable estate. In other words one could not dissociate the owner's powers of management from his rights of enjoyment, and vest the former in a trustee, and the latter in a beneficiary.
However, as Dr Pringsheim has shown,1 this extreme concentration of ownership seems to be peculiar to the classical Roman law, and to modern systems derived from Roman law. It is not found iri any independent systems, ancient or modern, and it is not found in early or late Roman law either. He himself calls attention to the existence of a problem which was solved in the time of Justinian by applying a technique essentially the same as the English distinction between the legal and the equitable estate. It had always been difficult to know how to explain the peculiar position of husband and wife in relation to dos. In one sense the husband owned it, but in another the wife. The classical lawyers seem to have been firmly convinced that they must place the undivided ownership— which was the only kind of ownership they knew—in the husband, though binding him by several obligations for the benefit of the wife. However in course of time the husband's powers over the dos became so limited that this solution became unreal, the more so when the wife was
i 59 L.%.R. p. 244.
PROPERTY AND POSSESSION |
83 |
given for the recovery of her dos not merely a personal action, but what is called a vindicatio units; and in the end Justinian uses language which can be best translated as saying that whereas the husband has the legal estate in the dos, the wife has the equitable interest. Whatever we may think of the technical explanation of the situation, it is quite obvious that neither party has the full rights and powers of an owner, but the ownership is divided between them.
However, this is not the only trace of divided ownership in Roman law. Our next example must come from the residue of archaic ideas which can be detected in the mature law of possession. According to the prevailing view the typical Roman possessor in the classical period was one who held the thing in his own right and did not recognise in practice the claims of any other person. Thus, in principle, any person who held by virtue of an ius in re aliena or in virtue of a contract which did not divest the former holder of his full interest did not possess. How, then, are we to explain the cases of the tenant at will (precario rogans), and the tenant under a long or perpetual lease (emphyteutd), or of his earlier prototype, a tenant of municipal lands {ager vectigalis), or of the early possessor of public lands (ager publicus), all of whom were exceptionally admitted to possess? The suggestion has been made—and it seems tofitthe facts better than any other— that these are all cases of tenure similar to feudal tenure, that in each case the possessor holds of the true owner, but that he holds what we should call the freehold, and is not a mere lessee. In other words, in early law the ownership was split up between the landlord and the tenant; only whereas the owner could recover his land by a real action, the tenant needed for his protection a special remedy, an interdict, devised by the Praetor. In later times it was easy to say that only the person who had the real action was owner, whereas the person who had only
84 LAW OF PROPERTY
the interdict was a mere possessor, but it seems probable that he had the interdict and was possessor only because at an earlier time he had been a subordinate owner. Here again there is division of ownership.
Finally, as soon as it became the law that in a fideicommissary substitution the prohibition against alienation that was imposed upon each successive holder operated in rem> and not merely in personam, so that each subsequent holder could undo any alienations made by his predecessors, then although each successive holder is called an owner, it is clear that the ownership was really divided between them in respect of time. In the classical law it looks as though the interests of the subsequent holders were, as we should say, merely equitable, for they could not have alienations set aside as against bonafidepurchasers.
The tendency of the classical jurists to concentrate their attention on the distinction between ownership and possession led to curious results in connexion with bona fide possession. One might have expected them to make of it a third type of interest, and perhaps even to decide whether it should be considered as partaking more of the character of ownership or of possession. However, not only do they appear not to have concerned themselves with its proper position in the law, but they never thought of it in a coherent way. One can describe bonafidepossession only as a state of fact to which different consequences were attached in different situations, as often as not with the addition of some other requirement.
Thus the bona fide possessor of a thing acquired the fruits of a thing by mere separation, but he had to be in good faith, not only at the time of the acquisition of possession, but also at the time when the fruits were separated. Strictly parallel to this case is that of the bonafidepossessor's right to be recompensed for improvements made on land. However, in one particular case, namely the acquisition of things through a bonafideserviensy the bonafidepossessor
|
PROPERTY AND POSSESSION |
85 |
acquired |
only such things as the bona fide serviens |
had |
acquired |
by his own labour or in connexion with the |
|
property of the bona fide possessor. Perhaps acquisitions made under the former head could be said to be the fruits of the labour of the bona fide serviens, but hardly those under the latter head. On the other hand in all these cases the title, if any, by which he came into possession, was quite irrelevant. By the time of Justinian, it seems that he retained title only to such fruits as he had not consumed when he was evicted from the object. For another purpose, namely the acquisition of ownership by usucapio, and for the similar purpose of recovering an object by the actio Publiciana, good faith was required only at the beginning of the possession, but on the other hand the possession had to be in virtue of some iustus titulus.
It is clear that bona fide possession is not the same in these various cases, and it is impossible to form out of them a coherent concept. What seems to have happened is that the Roman jurists regarded the presence of good faith as entitling possessors to more favourable consideration than was implied in the mere power of retaining or recovering that possession, but that for each specific solution they set up different requirements.
It is not always easy to see the reasons for these various solutions, or whether they were arrived at on purely practical grounds. In particular it is very difficult to decide to what extent, if at all, the jurists thought of bona fide possession as partaking of the nature of ownership.
Clearly the bonafidepossession which was protected by the actio Publiciana was a species of ownership, defeasible only by the true owner if acquired from a non-owner, but good even against the true owner if acquired from him by an informal mode. The latter form has always been recognised as ownership and has acquired in modern times the name of bonitary ownership; but the former type also, it must be admitted, is a form of ownership. However, as is