Roman

Roman

Furtum - Theft
1. Theft is the handling of a thing with fraudulent intention in relation to the thing itself or even its use of its possession
2. Includes
  1. Furtum conceptum - receiving
  2. Furtum oblatum - planting
  3. Prohibition
    1. preventing the search of a property
  4. Retention
3. Examples
  1. Use contrary to agreement in commodatum
  2. Making use of a pledge of thing deposited
  3. kidnapping free people
  4. taking something given to a creditor through pignus
  5. art and part liability
4. Manifest theft - furtum manifestum
  1. caught in the act
  2. caught in the place of stealing
  3. caught before the gear got to the place intended
  4. must be seen with the thing in his hands
  5. Penal damages
5. Remedies
  1. actio ad exhibendum - display property
    1. use before vindicatio
  2. actio furti
    1. AF manifesti
      1. 4x penalty
    2. AF nec manifesti
      1. 2x penalty
    3. AF prohibiti
      1. 4x penalty
    4. measuring the value
      1. positive - your property, the actual value of it
      2. negative
        if someone is liable to make good the loss. someone holding something under commodatum or diposit
Delict
1. Damnum injuria datum
  1. chapter 1 - killing slaves and pasture animals
    1. damages - highest value of thing in past 12 months
  2. chapter 3 - property and personal harm, burning, breaking, tearing asunder
    1. damages - highest value of thing in past or following 30 days.covers inheritance
    2. indirect harm - actio utilis - working mule hard
  3. requirements
    1. direct bodily force
    2. done wrongfully
  4. liability is culpa, not duty of care
  5. defences
    1. justification - self defence
    2. contributory negligence - walking in javelin field
    3. volenti non fit injuria - consenting to risk
2. quai delicts
  1. actio de positis vel suspensis - things hung or suspended
    1. no harm needs to be done
      1. 10 solidi
    2. occupier of building is liable under quasi delict
    3. if someone is harmed, lex aquilia. Person at fault must be found and they must be negligent
  2. Edict nautae caupones stabularii - ship owners, inn and stable keepers
    1. like vicarious liability
    2. liable for property entrusted to them
    3. liable for employees, slaves and permanent guests
    4. usually theft
  3. Actio de effusis vel deiectis - poured or thrown
    1. occupier is liable for double damages
      1. if they find person at fault the can recover from them
    2. free man killed - 50 gold pieces - alot
    3. free man injured - judge decides
    4. lex aqulia - need to find person at fault nad negligence
  4. Iudex qui litam suam fecerit - judge who makes the case his own
    1. biased verdict
    2. manifestly wrong decision
    3. liable to make good losses
Contract
1. Re
  1. Mutuum
    1. gratuitous loan of fungibles
  2. Commodatum
    1. Gratuitous loan for use
    2. must use thing according the agreement
      1. if not, strictly liable for all loss or damage
    3. Liable for dolus and culpa levis in abstraco
    4. High standard of care
  3. Depositum
    1. return movable when demanded
      1. In same condition except fair wear and tear
      2. Plus accretions
    2. Dipositee liable for dolus NOT CULPA
    3. use of object makes depositee liable in furtum usus
  4. pignus
    1. debtor retains ownership but possession transfers to lender by delivery
    2. bonus paterfamilias standard of care
  5. Fiducia
    1. formal conveyance of pledge by debtor to lender
2. consensus ad idem
  1. Error
    1. in negotia - A thinks sale, B thinks loan - void
    2. in corpore - identity of thing - void
    3. in persona - different person. void only when relevant
3. Duress
  1. threat of serious evil to party or family
  2. Actio metus - action for damages
  3. exceptio metus - defense of duress
4. Fraud
  1. actio doli - damages
  2. exceptio doli - defence
culpa
1. Lata - gross negligence
2. levis - ordinary negligence
  1. in abstracto - reasonable person
  2. in concreto - the individual person
3. levissima - light negligence
Things
1. derivative acquisition
  1. Mancipatio
    1. 5 witnesses
    2. certain words needed
    3. must be used for res mancipi property
    4. procedural
    5. if process isnt followed correctly then transferee is a boni fide owner
  2. in iura cessio
    1. much like mancipatio
      1. needs magistrate
  3. Usucapio
    1. converts possession into dominium
    2. classical
      1. land - 2 years
      2. movables - 1 year
    3. justinian
      1. movables - 3 years
      2. land - different province - 20 years
      3. land - same province - 10 years
    4. boni fide and bonitary owners
    5. essentials
      1. possession as owner
      2. lapse of time
      3. continuity
        natural loss - simply not in actual possession
        civil - legal action
      4. both parties in good faith
      5. Iusta causa - mistake will prevent usucapio
      6. can the property be usucapted
        stolen property
        unless original owner knows where it is and does nothing
2. Possessory interdicts
  1. retention
    1. uti possidentis - land
      1. possessor succeeds unless land taken by force, stealth or permission (give something to someone and can ask for it back at anytime)
    2. utrubi - movables
      1. possession to party with longest possession in past 12 months.
  2. recovery
    1. land
      1. unde vi
        restores possession to party evicted provided his possession wasnt gained through FSP
        one year limit
      2. de vi armata
        if armed force is used to evict pursuer they will recover possession reguardles of how they got possession
      3. if land is sold from B to C, A cant get back property
    2. movables - utrubi
      2. B sells to C, A can get back if they had greatest possession in last 12 months
3. Traditio
  1. Delivery
    1. physical handing over
    2. Longa manu - arms length, point at thing
    3. Brevi manu - have natural possession but then get given legal.
    4. Constitutum possessorium - transfer title but original owner keeps hold
    5. symbolic - keys to property handed over
  2. Requirements
    1. transferee in legal possession
    2. intention to transfer
    3. mistakes
      1. iusta causa - if intention it is not fatal
      2. identity - can be fatal. circumstances.
4. original acquisition
  1. occupatio
    1. taking with intention to own
    2. can thing be owned
    3. its yours as long as you retain or control
    4. animals
      1. loose control it becomes res nullius
      2. animus revertendi - homing instinct
      3. if you wound and animal and loose sight of it or difficult to pursue then loose ownership
    5. person abandoning property must have intention to do so
  2. accessio
    1. land
      1. A builds with B's mat on A's land
        B must wait till house falls down to get mat back
        if A stole mat then liable for double the value
      2. A builds on B's land using A's mat.
        good faith
        in possession
        B owns building but not materials. A gets expenses
        not in possession
        no remedy except gets mats when house falls down
        bad faith
        A gifts to B
      3. planting and sowing
        A sows B's seed on A's land
        good faith
        A owns seed. Compensates B
        bad faith
        A liable to be in theft
        A sows A's seed on B's land
        good faith
        A in possession - B owns but A gets value
        bad faith
        A gifts to B
      4. alluvio
        identifiable bit of A's land washes onto B's land. once B's trees take root, its B's land.
      5. avulsio
        new land belongs to the owner of the bank
        islands in river. medium filium. each owner owns whats on their side
    2. movables
      1. confusio - mixing of liquids
      2. commixtio - blending of solids
      3. writing acceeds to parchment
      4. examples
        Prin Own att acces in bad faith, PO liable for theft
        Prin Own att acces in good faith and has possession. no compensation
        PO att acces in good faith with no possession. PO can vindicate but must compensate AO
        AO att access to prin in bad faith. gift of thing
        AO att acces to prin in good.
        in poss - compensation
        not in poss - no remedy
  3. specificatio
    1. Reducibility - undue effort, stress, skill. damage to materials. leaves little left
    2. if creators material is included. thing belongs to creator
    3. spec takes priority over comm and conf
    4. good faith
      1. in possession
        creator owns. no compensation
      2. not in possession
        creator can vindicate, must compensate
    5. bad faith - creator owner, but liable in theft.
personal servitudes
1. usufruct
  1. termination
    1. destruction
    2. death of person who has right
    3. expiry of term
    4. non use
      1. 2 years
      2. extended to 10 / 20 years depending on province
    5. changing nature of property
  2. rights and duties
    1. right to natural and civil fruits
      1. natural on gathering
      2. minerals are not fruits unless property was a mine
      3. offspring are not fruits
    2. maintain herds
    3. maintain the property to bonus paterfamilias
  3. enjoyment can be transfered
2. usus
  1. can live on land but no fruits
3. habitatio
  1. life rent

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	Created by calum_gordon about 11 years ago