Invigilant et al.
Property Terms I
Property Terms II
Property Terms III
Shining Words I
Shining Words II
Rhetorical Devices I
Rhetorical Devices II
Rhetorical Devices III
Rhetorical Devices IV
Maxims of Equity I
Maxims of Equity II
Maxims of Equity III
Ancient Roman Property Law III
Bill Long 10/30/04
Getting to Prescription (Finally)
As we have seen, in Ancient Roman law there was a difference between a res mancipi and a res nec mancipi. The former had to do with immovables, animals, servants and "rustic" servitudes in the land of Italy. The latter had to do with movables and urban servitudes and all property, movable and immovable, outside of Italy. One could obtain full title to something (as a res mancipi) through a delivery in the presence of five witnesses with a copper balance. One could also obtain the full title through a court process, overseen by a Praetor, where the Praetor asked who was claiming the right to the object and, if only one party so claimed, it would fall to him. Since only Roman citizens could acquire res mancipi, the person claiming the thing would say that it belonged to him by quiritarian right (Gaius 2.24). A res nec mancipi, however, could be handed over through delivery without any need for more complex process.
A problem arose in that these kinds of conveyances of title often did not happen perfectly according to the law. The law then provided a means by which title could be perfected. The second-century C.E. jurist Gaius in the Second Commentary of his Institutes provides that if someone delivers an article to someone else without either of the formalities described above the "said article becomes yours by bonitarian right, but still remains mine by quiritarian right, until you, through possession, acquire it by usucaption (2.41)." Now we have the key term, usucaption, that brings us into the mental world of prescription.
Usucaption (the Latin literally means 'taking by use'), then, is the means by which one obtains real property, servants and rustic servitudes in Italy when correct process to obtain them is wanting. "Usucaption of movable property, however, is completed within a year, that of lands and houses within two years; and this was provided by the Law of the Twelve Tables (2.42)." Or, in other words, the bonitarian right ripens into a quiritarian right after one or two years. Gaius emphasizes the need for good faith possession of the property in order for it to mature into ownership by usucaption, though even good faith is not sufficient if the article which he possesses has been stolen or obtained by violence (2.45). Because of the Roman Imperial social policy of not letting land lie unused for much time, usucaption can happen for certain kinds of real estate after one year (2.53), even if the possessor knows that he has no right to the property. This species of possession and usucaption was called lucrative (i.e., costing nothing to the person) "for the party knows that he is profiting by the property of another (2.56)."
Justinian's Institutes (535 C.E.)
This is not the place to go into any kind of detail about the contribution of Justinian generally or even the nature of the legal reforms he brought. Suffice it to say that the Institutes were modeled after Gaius' Commentaries, though precisely on this point of usucaption and/or prescription Justinian differs from his jurist predecessors. When Justinian discusses uses of land, and the usucaption is a "taking by use," he does not make reference to usucaption, but has usufructus, usus and habitatio instead. These are not things that can mature into ownership of land for Justinian; they merely are different devices by which one could gain the "fruit" of the land (usufructus), the mere use of it (usus) or a dwelling in it (habitatio), though he doesn't adequately differentiate usus from habitatio (2.5.1-6).
But after describing these realities, he moves to "Title by Possession (2.6)." Immediately one recognizes the different philosophy of the Institutes:
"By the civil law it was provided, that if anyone by purchase, gift, or any other legal means, had bona fide received a thing from a person who was not the owner, but whom he thought to be so, he shoudld acquire this thing by use if he held it for one year, if it were moveable, wherever it might be, or for two years, if it were an immovable....the object of this provision being to prevent the ownership of things remaining in uncertainty (2.6.intro)."
But Justinian thinks he has come to "a much better decision," one that will not this suddenly divest owners of their property.
"We have, accordingly, published a constitutio providing that movables be acquired by a usus extending for three years, and immovables by the 'possession of long time,' that is, ten years for persons present, and twenty years for persons absent; and that by these means, provided a just cause of possession precede, the ownership of things may be acquired, not only in Italy, but in every country subject to our empire (Id.)."
Concluding with Prescription
So the notion of usucaption is continued, though the term drops away. We are ready for prescription. Some scholars say that prescription is simply the English way of continuing usucaption, but others stress the differences between the two terms (length of time for a claim to mature, whether a good faith belief was necessary, etc.). I will not solve the issue here today.
What I can say, however, is that at English common law, as Blackstone tells us, "formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended for an indefinite series of years. But by the statute of limitations, 32 Henry VIII, ch. 2., it is enacted, that no person shall make any prescription if the seizin or possession has been within threescore years next before such prescription." In other words, what had been 10 or 20 years for real property in Justinian's Institutes had now lengthened to 60 years under a staute passed in 1540.
The great historian of the English common law, Maitland, said howeer that in the early comon law there was no "acquisitive prescription for land, for it merely knew a limitation of actions," even though many incorporeal things could be acquired by prescription. It seems that this is in tension with Blackstone's comments, and so we must leave the subject for now (and maybe eternally) with some uncertainty over whether in fact prescription of land was allowed in days before Henry VIII in England. But we now know enough to be able to put prescription in its place for now. Now, if I had space or energy (both of which are lacking), I could return to the thing that got me started so robustly this morning, several hours ago, the notion of imprescriptibility. Well, maybe I have dealt with that issue as I unfolded the long and rather tortuous history of prescription and its predecessors.
Copyright © 2004-2010 William R. Long