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p421 Dominium

Article by George Long, M.A., Fellow of Trinity College
on pp421‑423 of

William Smith, D.C.L., LL.D.:

DOMI′NIUM. Dominium signifies quiritarian ownership of a thing; and dominus, or dominus legitimus, is the owner. Possessor is often used by Roman writers as equivalent to owner; but this is not a strictly correct use of the word. In like manner, "to have ownership" is sometimes expressed by "possidere;" and the thing in which there is a property is sometimes called "possessio" (Savigny, Das Recht des Besitzes, p85, 5th ed.).

The complete notion of property or ownership comprehends the determination of the things which may be the objects of ownership; the power which a man may have over such objects, both as to duration of time and extent of enjoyment; the modes in which ownership may be acquired and lost; the persons who are capable of acquiring, transferring, or losing ownership.

Res is the general name for anything which is the object of a legal act. The chief division of res is into res divini juris, and res humani juris. Res divini juris are those which are appropriated to religious purposes, namely, res sacrae, sanctae, religiosae; and so long as they have this character, they cannot be the objects of property. Res humani juris are all other things that can be the objects of property; and they are either res publicae or res privatae. Res publicae belong to the state, and can only become private property by being deprived of this public character [Agrariae Leges]. Res universitatis are the property of a universitas, and are not the property of any individual. The phrase res nullius is ambiguous; it sometimes means that the thing cannot be the property of any individual, which is affirmed of things divini juris; when applied to things humani juris, it sometimes means that they are not the property of an individual but of a universitas; yet such things may become the property of an individual; res hereditariae are res nullius until there is a heres. Res communes are those which cannot be the objects of property, and therefore are res nullius, as the sea.

Res corporales are defined to be those "quae tangi possunt;" incorporales are those "quae tangi non possunt, sed in jure consistunt," as Hereditas, Ususfructus, Obligationes; and they are consequently incapable of tradition, or delivery. The distinction of things into corporeal and incorporeal did not exist in the older Roman law; and it is a useless distinction. An incorporeal thing is merely a right, and so it is explained in the Institutiones (II. tit. 2, ed. Schrader).

Corporeal things are divided into immobiles, or solum et res soli, and mobiles. The ground (solum), and that which is so attached to the ground as to be inseparable from it without being destroyed, as a building for instance, are res immobiles. Mobiles res are all such as can be removed from one place to another without the destruction of their character. The class of res mobiles "quae pondere, numero, mensura constant," are such things as wine, oil, corn,º silver, gold, which are of such a nature that any the same number, weight, or measure, may be considered the same thing. [Mutuum.] There is another class of res, consisting of those "quae usu consumuntur, minuuntur," and those "quae non, &c." The term singulae res comprehends either one thing or several things, separately considered as one. Such things are either simple, as an animal, a stone; or compounded of parts, as a carriage, or a ship. Any number of things, not mechanically connected, may in a legal sense be viewed as one, or as a universitas (Dig. 41 tit. 3 s30; 6 tit. 1 s23 § 5).

Some things are appurtenant to others, that is, as subordinate parts they go with that which forms the principal thing (Dig. 18 tit. 1 s49). If a thing, as a house or a ship, was purchased, the buyer got every thing that was a part of the house or ship (Dig. 21 tit. 2 s44).

Fructus are what is produced out of a thing by its own productive power; as the grass in a field, the fruit on a tree.

The division of things into res mancipi and res nec mancipi, was one of ancient origin; and it continued to a late period in the empire. Res mancipi p422(Ulp. Frag. XIX) are praedia in Italico solo, both rustic and urban; also jura rusticorum praediorum or servitutes, as via, iter, aquaeductus; also slaves, and four-footed animals, as oxen, horses, etc., quae collo dorsove domantur. Other things were nec mancipi.

Certain things are not properly objects of ownership (dominium), though a claim to them is prosecuted by an actio in rem: they are servitutes, emphyteusis, superficies, and pignus and hypotheca.

Dominium properly signifies the right of dealing with a corporeal thing as a person (dominus) pleases; this, of course, implies the right to exclude all others from meddling with it. The dominus has the right to possess, and is distinguished in that respect from the bare possessor, who has only the right of possession. He who has the ususfructus of a thing, is never considered as owner; and proprietas is the name for that which remains after the ususfructus is deducted from the ownership. Ownership may be either absolute, that is, as complete as the law any ownership to be, or it may be limited. The distinction between bare ownership and ownership united with the beneficial interest, is explained in another place. [Bona.] A person who has no ownership of a thing, may have rights in or to a thing which, as far as they extend, limit the owner's power over his property, as hereafter explained. Ownership, being in its nature single, can only be conceived as belonging to one person; consequently there cannot be several owners of one thing, but several persons may own undivided shares or parts of a thing.

As a man's right to deal with a thing and to exclude others from the use or enjoyment of it, may be limited, this may arise either from his being bound to allow to another person a certain use or enjoyment of the thing of which he is dominus, or from his being bound to abstain from doing certain acts on or to his property, and for the benefit of some other person.

This limitation of a man's enjoyment of his own is explained under Servitutes.

In order to acquire ownership, a person must have a legal capacity to acquire; and ownership may be acquired by such a person, or by another for him. There must also be a thing which can be the object of such ownership, and there must be a legal mode of acquisition (acquisitio civilis). Ownership may be acquired in single things (acquisitio rerum singularum), or it may be acquired in a number of things of different kinds at once (acquisitio per universitatem), in which case a person acquires them not as individual things, but he acquires the parts by virtue of acquiring the whole. The latter kind of acquisition is either successio inter vivos, as in the case where a man adrogates another, and so becomes the owner of all the adrogated person's property (Gaius, III.21); or it is successio mortis causa, as in the case of a testamentary heres, or a heres ab intestato.

Acquisitiones per universitatem are properly discussed under other heads [Adoptio; Heres; Successio; Universitas]. The following remarks apply to acquisitiones rerum singularum. Acquisitiones were either civiles (ex jure civili); or naturales (ex jure gentium), that is, there was no formality prescribed for the mode of acquisition: in both cases dominium could be acquired. The civiles acquisitiones of single things were by mancipatio, in jure cessio, and usucapio; those naturali jure were by traditio or delivery. In the case of res mancipi, the only modes of acquiring dominium were mancipatio, in jure cessio, and usucapio; but usucapio applied also to things nec mancipi. The alienation of things nec mancipi was the peculiar effect of traditio or delivery (Ulp. Frag. XIX.8), and if there was a justa causa, that is, some legal ground or motive for the delivery, dominium was thus acquired; traditio, in the case of a thing mancipi, merely made it in bonis, and the dominium or ownership continued unchanged. The notion that in the case of res nec mancipi, bare tradition with a justa causa did not confer quiritarian ownership or dominium, is erroneous; for when the Roman law did not require peculiar forms, the transfer of ownership was effected in what may be called the natural way, that is, the simplest and most easy way in which the parties to the act could show their meaning and carry it into effect.

A man who was dominus of a thing, whether acquired jure civili or naturali, prosecuted his right to it in the same way, by the rei vindicatio. He could not of course prosecute such a right unless he was out of possession; and, in order to succeed, he must prove his ownership. If he had a thing in bonis, and was in possession, he could acquire the ownership by usucapion: if he was out of possession, it seems not an improbable conjecture of Unterholzner (Rhein. Mus. für Jurisprud. Erster Jahrgang, p129), that he was aided in his action after the time when the legis actiones fell into disuse and the formula was introduced (for as to a previous time it is difficult to form any conjecture) by the fiction of his having received the property by mancipatio. There are examples of a similar fiction in the case of the bonorum possessor and the bonorum emtor (Gaius, IV.34, 35). A man could only dispose of a legacy by his will per vindicationem (Ulp. Frag. XXIV.7) when he had the dominium of it: if he had not the dominium, he could only give per damnationem or sinendi modo. A slave who was the property of his master (dominus) might attain the Roman civitas by the act of manumission: if he was only in bonis of the person who manumitted him, he became a Latinus by the act of manumission. The difference between quiritarian ownership and in bonis was destroyed by the legislation of Justinian, who declared in bonis to be complete ownership.

Some modern writers enumerate in addition to the civiles acquisitiones here enumerated, addictio, emtio sub corona, sectio bonorum, adjudicatio, and lex (Ulp. Frag. tit. XIX. § 2), by which last they understand those circumstances under which some special enactment gives property to a person; and caducum [Caducum] is mentioned as an instance.

bonae fidei possessio was not ownership (dominium), p423nor was it the same as in bonis. The two things are distinguished by Ulpian (Frag. XIX.20, 21). A bonae fidei possessor had a capacity for acquiring by usucapion the ownership of the thing which he possessed. He had a kind of action, actio publiciana in rem, by which, if he lost the possession before he had acquired the ownership by usucapion, he could recover it against all against the owner, or such person as had a better right than himself, in which latter respect he differed from him who had a thing in bonis, for his claim was good against the person who had the bare ownership (Dig. 6 tit. 2).

As to fundi provinciales, it was an old principle of Roman law that there could be no dominium in them, that is, no quiritarian ownership; nor were they said to be in bonis, but the occupier had possessio and ususfructus. In fact the terms dominium and in bonis were not applicable to provincial lands, nor were the fictions that were applicable to things in bonis applicable to provincial lands; but it is an ingenious conjecture of Unterholzner, that the formula actionis was adapted to the case of provincial lands by a fiction of their being Italic lands, combined with a fiction of their being acquired by usucapion. In the case of the ager publicus in Italy, the dominium was in the Roman people, and the terms possessio and possessor were appropriate to the enjoyment and the person by whom the land was enjoyed. Still the property in provincial land was like the property in bonis in Rome and Italy, and it consequently became dominium after the distinction between quiritarian and bonitarian ownership was destroyed.

Ownership was also acquired in the case of occupatio, accessio, &c. [Accessio; Alluvio; Confusio.]

A man, who had a legal capacity, could acquire property either himself or by those who were "in potestate, manu, mancipiove." He could even acquire thus per universitatem, as in the case of an hereditas; and he could also thus acquire a legacy. If a slave was a man's in bonis, every thing that the slave acquired belonged to the owner in bonis, and not to him who had the bare quiritarian ownership. If a man was the "bona fide possessor" of another person, whether that person happened to be a freeman supposed to be and possessed as a slave, or was the property of another, the possessor only acquired the ownership of that which the person so possessed acquires "ex re possidentis" and "ex operis suis." The same rule applied to a slave in which a man had only the ususfructus; and the rule was consistent with the rule just laid down, for ususfructus was not property. Sons who were in the power of a father, and slaves, of course, could not acquire property for themselves. [Peculium.]

Ownership was lost either with the consent or the owner or against it. With the consent, when he transferred it another, which was the general mode of acquiring and losing property; without the consent, when the thing perished, when it became the property of another by accessio or usucapion, when it was judicially declared to be the property of another, or forfeited by being pledged. Ownership was not lost by death, for the heres was considered to be the same person as the defunct.

As certain persons had not a capacity to acquire, so some persons had not the same liability to lose that others had. Thus the property of a pupillus who was in tutela legitima, could not become the property of another by usucapion; a fundamental principle of law which Cicero was surprised that his friend Atticus did not know (ad Att. I.5).

Ownership might be lost by the Maxima capitis diminutio; when it was the consequence of a conviction for a capital crime, the property was forfeited to the state. [Sectio Bonorum.] The media capitis diminutio only effected an incapacity for quiritarian ownership: the person could still retain or acquire property by the jus gentium; still if the media capitis diminutio was the consequence of a conviction for a capital crime, it had the same consequences as the Maxima. (Mackeldey, Lehrbuch, &c. 12th ed.; Ueber die Verschiedenen Arten des Eigenthums, &c. von Unterholzner, Rhein. Mus. Erster Jahrg.; Gaius, II.1, &c.; Ulp. Frag. tit.XIX; Thibaut, System, &c. § 146 &c. § 242, &c., 9th ed.).

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Page updated: 8 Dec 08