Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

any rate not if he has consumed them. It would appear doubtful whether this freedom from liability to account can be derived from the defeasible ownership which he had formerly enjoyed.

Probably the bonafidepossessor's claim to be compensated for improvements was thought of in very much the same way as his non-liability to account for fruits, and it is even more difficult to see how this claim could arise from a former ownership. It must have been thought of as a claim to be recompensed for expense which has led to the unjustified enrichment of the true owner.

It is just possible that the Romans may have approached both problems from the point of view not of the evicted bonafidepossessor, but from that of the true owner who has evicted him. If Roman law thought of the latter as having been not merely out of possession, but out of his ownership during the period that the thing was held by the bonafidepossessor, then it is easy to see that the true owner could not claim in his vindicatio any fruits which had been separated in the meantime—since he could only claim the thing itself as it was at the time when he lost it, and at the time when he recovered it—but also could not recover anything that had been added to it by way of improvements between those two dates. However, this solution gives rise to serious difficulties: it does not by itself explain the distinction made between the bona fide and the mala fide possessor, and it does not explain the various procedural complications—for the bonafidepossessor could at civil law be evicted from the thing as it stood at the time of the vindication, improvements and all, and if he wished to be recompensed for the latter, he had to set up an exceptio dolt. Moreover his right was a right of retention, and not a right of action.

The other case, that of acquisition through a bona fide serviensy is confessedly assimilated to acquisition through a slave in whom one has a usufruct. However this does

88 LAW OF PROPERTY

not square with the distinction made between the bonafide possessor and the usufructuary in the acquisition of fruits. A restriction is placed on acquisition through the bonafide serviens which has no parallel where the fruits are those derived from a thing.

The proper conclusion therefore seems to be that each problem which arose in connexion with bonafide possession was dealt with on its own merits, and that there was no attempt to find a single analogy. It is quite obvious that there is nothing here comparable to the logical treatment which English law accords to persons holding under titles of varying degrees of validity; and, strange as it may seem, Roman law, which ordinarily places very great emphasis on ownership, is much more favourable to a person who is ultimately evicted than is English law, which recognises nothing better than the best right to possession.

The unsystematic, and indeed disorderly way in which Roman law dealt with problems of bona fide possession seems to show not only that the strict dichotomy between ownership and possession is rather unpractical, but also that there is no need for English lawyers to apologise, as the older analytical jurists were inclined to do, for the structure of their own law. Certainly the English treatment of real property is exceptionally logical and systematic, and although the law of personal property has not been thought out so consciously and carefully, it is probably as logical as it is practical in character. In any case the English law of real property shows a fertility in expedients, and affords to the conveyancer and to the man of property a wealth of constructions which are far beyond the scope of Roman law. Whether one should regard this as a matter for congratulation, or, on the contrary, one should prefer a law of property which limits its concepts to those which are absolutely indispensable, is really a question of policy on which the lawyer is not entitled to have the last word.

3. IURA IN REM AND IN PERSONAM

Closely allied with the distinctions which we have been considering is that between iura in rem and iura inpersonam, which was clearly expressed throughout the Roman system. The jurists did not indeed state it in these words: they spoke in terms of procedure, of actions in rem, inpersonam} But their forms of action show that the distinction expressed in them is one of substantive law. The claim in a legis actio, in rem, was a claim not to a right available against a particular defendant, but to one available generally: 'I declare this thing to be mine/ In an actio inpersonam it was a declaration of some liability resting on the defendant: 'I declare that Negidius is lawfully bound to pay me ioo asses/ And in the later formulae the distinction is equally clear. The index in an actio in rem is directed to condemn the defendant if the res proves to be the plaintiff's. In an actio in personam the direction is to condemn if it appears that the defendant is lawfully bound to pay. It is true that some modern writers deny the validity of this distinction and maintain that a right in rem is only a mass of rights in personam, that it is 'in the air' till someone does something which gives a right of action, in fact that the only solid ground is a law court. On the same ground it is said that Austin's primary or sanctioned rights are not rights at all, but only possibilities of right, that under a contract we have no right to performance but only to damages in certain events. No doubt, also, with a tendency to treat all rights as claims it is difficult to cling to the notion of a ius in rem without arriving at claims in rem. Windscheid, who seems first to have made the conception * Anspruch' fashionable, in fact arrives at what he calls a 'dinglicher Anspruch',2

1 For the complicated relations of this distinction to the entirely different distinction between real and personal actions in English law, see especially Maitland, The Forms of Action at Common Law, pp. 73-78.

2 Windscheid, Lehrbuch, 1. Sect. 43. Anspruch =claim; dinglicher Anspruch = claim in rem.

which, however, is, so long as no wrong has been committed, a claim to forbearances. But it does not seem that this 'dinglicher Anspruch' is widely accepted.

Whether this analysis is of real value, whether it really explains the proceedings of the Courts in such things as originating summonses1 and whether the view that a man, who, like the majority of people, has at the moment no right of action against anyone, is without legal rights, satisfactorily explains his position, may be doubted. Law and litigation are not the same thing, however much they may seem so to one who spends his life in the study of cases and the practice of the Courts and is apt to regard the floor of the Court as the only solid ground. Law is a set of norms and notions, and one of these is, e.g., the right of property. Whatever the truth of all this may be, the fact remains that it is impossible to understand the Roman procedure or the Roman texts without treating the distinction between rights in rem and rights in fersonam as fundamental. It was the clear view the Romans had of this distinction that enabled them to maintain the distinction between titulus and modus adquirendi. Thus while with us the agreement to sell a specific piece of personal property in a deliverable state at once transfers the ius in rem, in Rome it never did: there had to be a distinct act of conveyance.2 And the classical jurists, at any rate, could hardly have conceived of the hybrid right of the beneficiary under the trust.3

1 E.g., in a case where executors are asking the Court for directions as to how to distribute legacies or, generally, to administer an estate.

% See p. 287, post, as to this and the modern Roman law on the matter. 3 See pp. 176-179, post.

4.OWNERSHIP IN FUTURO AND TERMINABLE OWNERSHIP

There was nothing in Roman theory to prevent the creation of an ownership to begin in the future, provided the right form of conveyance was used. The formal civil methods, mancipatio and in iure cessio, would not serve because their operation could not be suspended, but traditio was not so limited and could be used for almost all purposes with the same practical effect. If Titius handed property to Maevius on the terms that it was to belong to him in ten days or when Sempronius died, or even when the grantor died, there was no change of ownership till the specified event occurred and when it did occur the property passed ipso facto. With traditio available the Romans were not faced with the difficulty, inherent in the doctrine of seisin, that every future estate must have a particular estate to support it, and that the seisin, i.e. for practical purposes the ownership, must pass from the transferor to someone, at the moment of the conveyance. Even {he law of executory interests did formal obeisance to this principle, though in practice it evaded it. The sweeping changes of the present century have not abolished the principle. It is still not possible to create an estate in lands to begin infuturo without resorting to a trust, except that a lease may be created to begin at a future date not beyond twenty-one years. It is true that the difficulty does not arise in relation to moveables, which can be transferred by delivery. It is a common clause of hire-purchase agreements that, though the goods are delivered, the property shall not vest in the buyer till all the instalments are paid. But even here our law gives a result very different from that of the Roman law. In that law no act by the holder under the agreement could affect the title of the owner. If he alienated he could not give a good title to his buyer even though both parties were acting in good faith, though if they were, the receiver

could acquire by usucapio; while in our law, by the operation of modern legislation, a bonafide purchaser from the holder on such facts will get an immediately good title.1

So too in a case of simple gift there seems to be a considerable difference. Under either system a man may hand over an article to another to be his if a certain event happens, e.g. 'It shall be yours if you pass your Bar examinations in due course/ Here, under Justinian, when once the thing has been so handed over it is a conditional transaction which waits for nothing but the fulfilment of the condition. Apart from some special cases which do not affect the principle2 there was no possibility of revocation. But the case is not instructive, since under Justinian the mere informal promise to give would be binding even without any delivery. In classical law a promise to give would be valid only if it had been made by stipulatio. Moreover, if in earlier times the thing had been handed over with no formal promise, on a condition, it seems that under the system of possessory remedies the donor could within six months recover the possession even though the condition occurred.3 But once the condition occurred, as there had been a valid traditio donationis causa^ it seems that he would have had no defence against a vindication a real action, by the donee. In our law, though authority on such things is very scanty, it seems probable that when a

1Factors Act, 1889, Sect. 9; Sale of Goods Act, 1893, Sect. 25 (2); Marten v. Whale, [ 1917] 2 K.B. 480; Hetty v. Matthews, [1895] A.C. 471; but when, as is much more usual, the holder has not 'agreed to buy' but has merely an option either to return the goods hired by him or to become their owner by payment in full, the bonafide purchaser from him does not get a good title; it is necessary for this reason to distinguish between a mere option to buy which imposes no obligation and a conditional agreement to buy. See also pp. 291-292, post,

2Buckland, Text-book, pp. 253 sq.

3Since in the interdict utrubi that one of the parties prevailed who had had possession of the thing for the longer period during the past year. As soon as he had had the thing for six months the donee's position would be better than the donor's.

thing is so handed over to be a gift if a condition precedent is satisfied, the holder in the meantime is in the position of a bailee. The bailor can determine the bailment. If he does this before the condition is satisfied, it seems that the gift is imperfect and unenforceable.1

On the other hand classical Roman law did not recognise a terminable ownership and there was no such thing as a future estate dependent on the expiry of one created by the same transaction. Thus we are clearly told that if a traditio of property was made, to be operative only for a certain time or till a certain event, the conveyance was simply void.2 What seems to be the same text recurs, however, in the Code of Justinian (C. 8. 54. 2), with its decision reversed. The property right reverts ipso facto by the occurrence of the event. The same thing is found in other branches of the law.3 Many texts leave the old doctrine and it is not clear that Justinian laid down a comprehensive doctrine for all such cases. But, at most, it is never more than a question of reverter: there can be no question of a transaction by A creating an ownership in B to be followed by an ownership in C. Limited interests might indeed be created, for not more than a life (usufruct), but they were not thought of as ownership. They were iura, rights sui generis, which ultimately came to be thought of as servitudes, analogous to praedial servitudes which correspond to our easements and profits. They were res incorporates, while ownership is thought of as a res corpora/is: the ownership and the thing are not distinguished in the texts. The ownership exists in someone else, hampered by the usufruct, but the ultimate right is the only ownership. It was not possible, as it is with us, to create inter vivos, by the

1 See May, Fraudulent and Voluntary Dispositions, p. 362; Halsbury, vol. 18, §755.

4Vat. Fr. 283. This does not prevent transfer on the terms that at a certain time or on a certain event the property shall be reconveyed (D. 18.

2.3, 5), but here there would be needed a reconveyance.

3See, e.g., Buckland, Text-book, pp. 189, 254, 497 sq.

same transaction, a further interest to begin at the expiry of the life interest. It could indeed be done by will, but the difference of conception leads to a noticeable difference in terminology. If a testator gives a life interest to A and the property, subject to this life interest, to 5, then under our terminology, A^ the life tenant, has the corporeal hereditament, and B has an incorporeal hereditament. But in Roman law the life tenant has only a res incorporalis: B has the res corpora/is. It begins at once. B is regarded as being in possession, since A's life interest, being incorporeal, is not susceptible of possession. The case has some similarity to that in which land is conveyed subject to a lease: the freehold passes at once. A usufruct could indeed be given for a term of years subject to survival, in which case it much resembles a lease for years determinable on life. However, our term of years has only gradually acquired the character of a ius in rem. Primarily it is a contract, as such a term always was in Roman law. Again, the termor 'holds of the freeholder, but the usufructuary does not, any more than the life tenant in our law holds of the remainderman.

If a specific object was settled by way of fideicommissary substitution, each successive holder was regarded as full owner of it, though forbidden to alienate it and bound to leave it on his decease in accordance with the terms of the fideicommissum. Whatever was the position in the classical law, his ownership came in the end to be terminable; for no alienation by him could have effect for a longer period than his own life.

5. CONTENT OF OWNERSHIP

Ownership was no more unlimited than it is with us: the legislature could and did impose restrictions of various kinds. Apart from the general principle that a man's rights over his property are limited by the rights of others, there were a number of specific rules, often local, limiting

the heights of buildings, and the use of certain sites for building. There was a rule forbidding the destruction of houses for speculative purposes, or, perhaps, for any purpose other than the improvement of the neighbourhood. There was much regulation of mining exploitations, some of which has already been mentioned.1 But a more peculiar feature of the Roman law is the existence of a large number of special provisions regulating the relations between neighbours, a matter which, in our law, seems to be left to the ordinary law of trespass and nuisance, supplemented by the preventive machinery of injunctions.2 As early as the XII Tables there were restrictive rules on the matter.3 There was an ancient rule forbidding any kind of obstruction, in rural areas, upon the fines, i.e. within a few feet of the border of the property on either side, the open space, uncultivated, serving as a passage way.4 An analogous rule required a space between buildings, but this disappeared early.5 Other special machinery played a more important part in the law; but it is more properly discussed in connexion with nuisance.6

There has been much discussion in recent times of the question whether the Roman law allowed expropriation for public utilities. Here it is important to draw a distinction which has been somewhat disregarded. In historical times there was no restriction on the powers of the supreme legislature. It could expropriate for any purpose. But in fact, so far as utilities are concerned, there is little sign of any such thing in classical law. Indeed even such evidence as there is may be deceptive, for it seems that the cases

1P. 62, ante.

2Attorney General v. Corporation of Manchester, [1893] 2 Ch. 87;

Colls v. Home and Colonial Stores, [1904] A.C. 179, though as early as Bracton there was an assize of nuisance.

3 See Bruns, Fontes Juris Romani, 7th ed. pp. 27, 28.

4Karlowa, Rom. Rechtsg. ii. p. 459.

5Ibid. p. 518.

6See pp. 392-395,