Today we will talk briefly about the rights to other people's things in Roman law. What is meant? The situation was as follows: the owner of a particular object was a specific person. But another person in these conditions had a number of rights relating to this thing.
Rights to other things in Roman law: concept and types
The source of the emergence of such limited rights was either the will of the owner (which was determined by the concluded agreement), or this happened with reference to existing legal acts, the purpose of which was to optimize the use of certain categories of things for economic purposes.
Due to the difference in the methods of exploitation of extraneous property, the concepts and types of rights to other people's things in Roman law differed among themselves. Consider which of the types of such relationships can be distinguished according to his postulates:
1. Servitutes (easements). This concept designated the rights to other things of a property nature. The easement could be personal and material (about which below). In our article, we intend to consider in detail the existing easements - types, the procedure for establishing and terminating.
2. A pledge was such a state of affairs when a thing comes at the disposal of a creditor as security for the fulfillment of a certain requirement.
3. Emphiteusis (emphyteusis). This concept applied to a foreign land and denoted inheritable rights to other people's things in Roman law of an alienable nature (for long-term use).
4. Superfisies. It can be conditionally considered an analogue of emphyteusis. It was understood the right to lease long-term nature, which was inherited and alienated. The purpose of this variety is the construction of buildings on the site with the right to use them.
What is an easement?
Let's talk a little more about the concept of easement. Its appearance is directly related to the emergence of land private property. For example, one of the reasons for the emergence of this concept is the existence of land located without access to common roads or water sources. At the same time, it was impossible to do without securing to the owners of such territories the right to use water from sources available in the neighborhood (on foreign sites), to pass through adjacent lands in order to reach a common road.
What are easements? This name was given to the use of foreign territory. Formally, this concept denotes the rights of a certain use of one or another type of another's property. The owner of the site with a source of water was restricted in his rights. And neighbors who did not have one could use water, having the easement right.
A related concept is the law of obligations, which should be distinguished from the easement mentioned above. A binding law has always been directed at the actions of specific individuals. An example is the situation where the owner, deprived of his water source, entered into an agreement for the use of such a body of water with the owner of a neighboring site. But in the event that the latter sold his land to a third party, the obligation to conclude such an agreement ceased. He needed to renew the agreement again with the new owner of the territory.
It is easier to imagine what easements are, knowing the object of its application. Servitude law implied directly as a thing a thing, and not the actions of specific individuals. That is, the easement served as an encumbrance of the object, and therefore the subject of this right had the privilege of using objects of one kind or another regardless of the procedure for changing the owner.
The right to life-long use of someone else's subject was called a personal easement. Those, too, there were several varieties.
Which ones?
Under this term Ususfructus (usufruct) there was a right to use someone else's property with its fruits, provided that the integrity of the subject matter was preserved. The object of this variety could be both movable and immovable property (pond, garden, etc.). Such rights were established for a specific term or for life.
The usufructuary owned the rights to other people's things in Roman law, not only in the form of use, but also for obtaining fruits. Moreover, the item could be transferred to them to a third party in accordance with the lease agreement. At the same time, responsibility to the owner for the safety of things and their normal use remained.
The usufruct entity was charged with the obligation to reimburse any costs for the subject, for example, the payment of taxes and other payments. He was obliged to treat the object with care and respond in the event of his own fault (as well as the fault of the tenant) in damage or damage. In a word, he had to pay for all cases when a thing was in one way or another rendered unusable, or the owner suffered damage in some other way.
Usufruit was not subject to alienation and inheritance. The subject of the contract could be sold by the owner, mortgaged, burdened by yet another easement, but the rights of the person who concluded the said act could not be infringed upon. Usufruct is the only easement to be divided into shares. Only he from all varieties could relate to several persons at the same time.
Quasi ususfructus is a type of property law that applies not only to consumable things, but also to whole property. Its user status was equal to the owner of the object. A person who entered into such a contract would have to pay a certain amount of property fixed at the conclusion of the contract upon completion of the agreed period of use under certain security. It was possible to stipulate the return issue not only in money, but also in the form of the sum of homogeneous things.
Other categories
Usus (Uzus) - this concept denoted the right to use someone else's subject, but without any creeps on its fruits. Uzus most often existed in the form of a life status granted to a certain person. Its use was extended to persons directly related to the object of the ostrich (for example, close relatives of the usuaria living with him in the same house).
But the uzus was not subject to transfer to use by unauthorized persons, as well as division into parts. Its owner could use the item in an amount not exceeding personal needs, taking into account the presence of other family members. He was charged with the obligation to bear all the costs of maintaining the subject of the Uzus, including payment of taxes, duties, etc. At the same time, their size was less in comparison with the amount that the usufructuary paid. In other respects, the responsibilities of these two users almost coincided.
If it was impossible to separate, the ostrich could nevertheless belong not to one person, but to several. The responsibilities of each of them were prescribed in a specific document. As in the previous version, the user was strictly charged with the obligation to exercise his own right exclusively by legal means with the subsequent return to the owner of the object in an acceptable form.
Habitatio - the so-called right to live in a strange house (or a certain part of it). It could be provided according to the will. Suppose, the ownership right after the death of the owner passed to the heirs, and a distant relative was vested with the right to reside.
Some subtleties
In the future, many copies were smashed by lawyers on the topic of whether such rights to other people's things in Roman law belong to one of the varieties of ostrich, usufruct, or are something separate. In different interpretations, the status of this right was read in its own way. But gratuitous concessions to his third party were not provided.
Operae servorum vel animalium - the so-called lifelong right to use other people's animals or slaves. It belonged to the number of personal easements, and at one time also caused a lot of controversy among Roman lawyers. The rules of submission to this right were similar to those that governed living in someone else's home. The work of an animal or slave could be used for personal purposes or it was subject to lease for a fee. A lot of controversy was about the possibility of transferring this right free of charge.
About land easements
Let us turn now to the property servitudes related to the earth and therefore also called the land ones. Property law in Roman law established the main difference between them and the previous ones (of a personal nature) in their orientation not to a specific person, but to a specific subject. These privileges could be granted to a person (the owner of another plot) and were associated with the use of foreign land.
Property easements are a constant and existing concept regardless of the change of subjects (users). One of the earliest in the codes of Roman law was the concept of rural servitude. It was issued on land for the purpose of its "official use" with the goal of improving and maximizing profit.
In the framework of property law in Roman law, there were many categories:
1. The road easement implied the right of passage or passage through the territory of the site. Moreover, certain varieties of it were regulated by various types of movement. One of them concerned the right of walking through the "service" territory, the other - riding a horse, the third allowed the holder to ride on a cart and carry luggage.
2. The water easement was the ability to use the water available on the site or to put it through the territory for irrigation purposes. Other of the water easements implied the right to draw water from a neighboring site or to drive one’s own cattle to someone else’s land for watering, and also drive through it.
The two categories above were the oldest of their kind. Gradually, on their basis, the emergence of easements related to other varieties of land rights. This related to the right to mine sand, as well as clay and lime, the right to store fruits in a foreign territory, grazing and exporting ore and stone from it. On a site owned by another owner, sometimes even grown a vine.
About urban varieties
The city also had its own land easements, and they concerned the “service” plots of Roman cities. There was also a division into a number of categories:
1. One of these rights to other people's things in Roman law concerned the permission of the owner of the said plot to erect buildings on it with support on the walls of neighboring houses. Moreover, certain subsections of this provision concerned the supports of various building structures - beams or walls.
From the latter, a provision on the right to space grew, which was often not considered as a separate category. Here we can mention the possibility of manufacturing a protrusion with an overhang over the territory of a foreign site or erecting a roof with an invasion of neighboring airspace.
Some varieties of city land law concerned the disposal of sewage, sewage, rain and simply excess water. Each of them individually provided the opportunity (fixed by law) for the owner to divert water of the corresponding category through the service area.
The content of property rights in Roman law even concerned the view from the window! One of its many varieties imposed a ban on the owner of the service site to build buildings that could degrade lighting or spoil the view from the windows of a house standing on the so-called mainstream site.
The owner of such a property could also have the right to prohibit the construction of a building above a certain size or to cancel the production of any specific work leading to the possibility of blocking the light to the owner of this privilege. The same applies to the possible overlap of the view from the windows of the building. As we see, property rights in Roman law were notable for their considerable diversity and were sometimes quite intricate.
How did easements arise? Ways of their appearance - legal transactions, statute of limitations, legal order or consequences of court decisions. Let's take a quick look at each of these options.
Legal way of acquisition
Civil law implied the installation of any easement by way of assignment of rights during the process. In addition, for rural servitudes there was a path of mansion. When making a land transfer transaction, the owner of the plot was given the opportunity to acquire for personal use the easement to the alienated territory in the form of an additionally drawn up agreement attached to the sales contract.
During the period of the Roman Empire, the establishment of easements followed the path of tradition, that is, the method of transferring ownership of it. Simple agreements were used to establish easements relating to provincial lands. Subsequently, most of the ancient formal methods of establishing easement rights were abolished. Only the methods mentioned above remained legally valid - traditional and by simple agreement of interested parties.
The right to acquire a land easement was vested only in the owner, superficiary or emphyteus. Those that belonged to the personal, could afford any citizen. It was permissible to establish land easements together with the owners of the plots.
Prescription method
This option was practiced until about the middle of the 2nd century. BC e. The limitation period was considered a two-year period. This method was repealed by law in 149 BC. e., but the prescription (that is, over a 10 or 20 year term) of the possession of any of the easements in the period of the empire was recognized again.
Legal acquisition
It existed in cases of, for example, marital divorce. The provisions of Roman family law characterizing the spouse as guilty of divorce and creating grounds for him, suggested the presence of a fine. In the absence of children, the amount was sent to the injured party. If the heirs were available, they transferred the ownership of the property in a fine. The innocent spouse was endowed with usufruct on this subject.
The establishment of easement by a court decision could take place, say, in the case of a division of common property. If the land plot was divided unevenly, the largest of the territories was burdened with an easement in favor of the one to whom the smaller land plot became property. Another option could be a situation where the court the owner of the land was given the obligation to provide another for a fee to go to the place of burial of relatives.
How did easements end?
From a legal point of view, such rights could be terminated due to various circumstances. These included events of a natural nature, the will of an authorized person, a certain set of circumstances, etc. In the event of the termination of the easement, the ownership right was subject to restoration in full with the removal of all relevant encumbrances.
The existence of this concept was lost with the death of the object to which it belonged (serving as the object of the transaction) or its transition to a certain state, making it impossible to apply the established law. If the owner subjected the object to such significant changes, it was his responsibility to compensate the subject of the easement of the servitude of the losses caused by these transformations.
The reason for the termination of personal easements was the fact of the death of authorized persons or their loss of any degree of legal capacity. In certain periods, Roman law allowed the termination of a personal easement only if it was lost to an average or maximum degree.
Other cases of the termination of easements related to the user’s refusal of the corresponding right, expiration of the limitation period or when the owner bought the land plot into the ownership of the dominant territory. In this case, personal easement required a combination of ownership of the subject and its lifelong use.
The initial protection of holders of servitude law was made through special lawsuits (vindicatio servitutis). A similar situation existed to ensure the rights of subjects. With the help of claims, lost easements could be returned or obstacles arising from attempts by owners to use their own right to be removed.
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Emphyteusis in Roman law was considered a lease of a hereditary nature (that is, eternal) for processing for agricultural purposes. The authorized person could use the site practically as an owner. At the same time, he was prescribed strict compliance with the conditions for the prohibition of deterioration of the quality of the site. He was required to pay an annual fee, called the canon (pension).
Among the owners of the land could well be the church. The main way to establish this type of law was an agreement concluded between the owner and the subject of law. Moreover, the possibility of the transition of emphyteusis and superficiality in Roman law took place between different people.
Collateral concept
Mortgage law in Roman law did not provide a single term for this phenomenon, and they called it differently. Common to all the manifestations of this action was to ensure the personal nature of the creditor's claims. Thus, the meaning of the pledge agreement was to respect the rights of the creditor and provide him with more scope in their implementation.
The purpose of the pledge was to maintain confidence in the sufficiency of the property of one of the parties that could not fulfill its own obligations to make up for the damage, regardless of the possible presence of claims of third parties directed to the party that violated the obligations. The pledge was made by voluntary agreement, when one of the parties agrees to link his own thing as a pledge.
To ensure a certain obligation, the lien in Roman law was accessory, that is, additional in comparison with the main one. The owner of the property or his representative, endowed with the appropriate right to alienate the item, could make a pledge. The creditor himself could relocate the property.
Its establishment took place either by agreement of the parties, or by order of the magistrate (the so-called judicial bail), or by law in certain cases stipulated by legal norms regarding, for example, custody.