OWNERSHIP AND POSSESSION are both standardized sets or packages of rights over pieces of property, but Roman law also allowed the packages to be broken
up in other ways. The owner could retain his title to an item but transfer control over it (for a time), or retain both title
and control while granting specific rights (say, the right to walk across his land). This greater flexibility was of commercial
value, since it gave owners a variety of ways to exploit their property and allowed them to deal with a variety of other business
partners. But, as we will see, these partial rights were also useful for other reasons. The first section of this chapter
treats temporary but near-total transfers of rights (usus and usufructus); the second treats a set of more limited rights (called “servitudes”) that could be traded. The third section treats rights
a neighbor could claim over next-door property. The last one will cover the limitations produced by joint ownership.
These are the rights to the use of an object with (usufruct) or without (
usus) the right to keep the “fruits” of the property
(e.g., fruit from an orchard or ore from a mine, rental income, offspring of livestock). The combination package, usufruct,
is more common, and, since the rules for this and for
usus by itself are largely the same, I will speak only of usufruct in what follows. In principle, there could be a usufruct of
anything (originally only a thing not meant to be consumed – say, livestock or tools, but not cash or grain), but in practice
it was usually used for real estate. Usufruct could be created by the various rituals used to transfer ownership in general
(in fact, the right of usufruct is treated as a type of property in its own right). In this way one could give or sell usufruct
in a commercial transaction. However, this is not actually how it was normally used. The ordinary way to create a usufruct
was by will; ownership of an item was left to one person, and usufruct of it to another. So, for instance, a man might pass
title of the family house to his children, but leave the use of it to his wife. In fact, provision for widows seems to give
rise to more usufructs than all other scenarios combined, and may have been the origin of the entire concept. It could also
be used in the division of an estate among heirs who wanted to retain some parts more or less in common.
The fact that usufruct is so closely tied to this one social situation makes sense of a number of the specific rules that
govern it. For instance, a usufruct could not be created to last longer than the lifetime of the person who was to benefit.
Contrast that to modern copyright, which substantially outlives the actual author. This is because the value of copyright
lies primarily in its sale, so the longer term helps the buyer and
(because she can get a better price) the author. Usufruct is not thought of (primarily) in such commercial terms, so it does
not need to run longer; it runs long enough to help a spouse left behind. (A term
shorter than life could be fixed at the time it was created, though this seems to have been rare.) Technically, usufructs could not
be resold – again, we see its noncommercial origins – but there was a significant loophole. The holder of the usufruct could
rent or sell the “enjoyment” of it. This made exploitation of the property easier, since you could take simple, fixed cash
payment rather than having to run the old family farm yourself. Still, the technical holder of the usufruct remained a middleman
between the owner and the end user.
Moreover, he was a middleman in an important practical sense as well. The holder of any usufruct, whether rented out or not,
had responsibilities to the owner. He couldn’t damage the property. If there was loss to the property – say, a window was
blown out in a storm or animals in a flock died naturally over the course of a year – he had to make it good, whether out
of the profits or out of his own resources. (The holder of the usufruct was held to the standard of how a “good
pater familias” would care for his own property.) This provision is not surprising, and similar terms exist in other relationships in which
one person has temporary custody of another’s property. In this case, however, there is a tighter and more specific restriction.
The holder of a usufruct was not allowed to make changes that would alter the fundamental character of the property, even
if these changes were arguably improvements – for example, replacing a small building with a larger one, replacing shade
trees with fruit trees, mining on crop land, plastering bare walls, or even installing gutters. Note that this restriction
is not technically negotiable; it is built into the definition of usufruct (though, of course, an owner who really did not
care what the holder of usufruct was doing to her property could simply choose not to take legal action to stop it.) Again,
this limits the flexibility and thus the commercial value of usufruct, but makes reasonable sense if (as just suggested) usufruct
is meant as temporary support for one person until the “real” owner takes over. Note also that if the nature of the property
was dramatically altered by
outside forces (say, if a house burned entirely to the ground), the usufruct came to an end.
Usufruct gives its holder broad enough rights that we can think of it as near to ownership, but with a few defined limitations.
Servitudes, on the other hand, are very specific rights over a piece of property that in most respects remains under the control
of the actual owner. Servitudes are “real” rights in the technical sense of being attached to things (Latin
res), not to people (compare the “real” contracts discussed in
Chapter 12 or the English term “real estate”). More specifically, they were always built into a pair of adjacent pieces of real estate.
When a servitude exists in one of these pairs, the person who happens to own one property (the “dominant” one) at any given
time always has that right over the person who happens
to own the other (“servient”) one at that time. Suppose you own a farm with the servitude right to draw water from the spring
on my (next-door) farm. Then, suppose that we sell the farms to our respective sisters. Your sister then automatically acquires
the right to get her water from my sister’s farm (while neither you nor I keep any rights). There are a great many specific
servitudes – for example, passage over another’s property, drawing water, allowing/preventing dripping or smoke from another’s
building, blocking/allowing light. At least some details could be set individually (say, the time or mode in which the rights
could be used), and it is possible that entirely new servitudes could be created as long as they fit the general rules
[24].
Servitudes were usually created by agreement between the two owners, though the agreement had to be validated by appropriate
ritual. This commonly took place at the time of a sale (with the old owner retaining certain rights over a part of the property
he was selling). It might also commonly be done at times when a formerly unitary property was divided, such as when joint
heirs wished to separate their shares of that property. Another way to gain a servitude was simply to assert and use the right
for a sufficiently long time. This was an unusual method of acquiring rights in Roman law, but it is paralleled in common
law by the law of so-called easements. This possibility existed in earlier and later periods (with some technical differences)
but not for some period in between, perhaps roughly the first two centuries
BC. When it did exist, a property owner might specify that use was with his permission
(which he could revoke), and that would block formation of the servitude
[23f, i].
Unlike usufruct, servitudes could in principle last forever, and in theory it was not possible to create one with a built-in
time limit. The owner of a dominant property could renounce it by appropriate ritual, and that would eliminate the relationship
between the two properties from that point forward. The servitude would also automatically disappear if both properties came
to be owned by the same person (you can’t have a right against yourself), even if they were later divided again. Most distinctive
to servitude is loss by disuse, the flip side of acquisition by assertion. There were two versions of this process. So-called
positive servitudes involved the right to use the other person’s property directly (e.g., passage, drawing water). These were
lost by simple nonuse for a specified length of time (a year or two). Written notices might serve to reinforce the existence
of such rights
[23a, c, m]. “Negative” servitudes, on the other hand, involved the right to stop the other person from certain uses of their property
(e.g., discharging smoke, blocking light). These counted as “unused” only as long as that other person was actually taking
potentially forbidden action (e.g., has actually built a house that blocks your light). Since asserting and denying rights
was important to keeping them, it was common to post notices asserting your rights (or denying others’), and many of these
have survived, inscribed on stone (see
[24]). This general idea of loss by disuse is also paralleled in the modern law of easement. (Some universities where I have worked
have similar notices written on metal plaques embedded in the
sidewalks around the edges of the campus. On these, the university regents assert that passage is by permission only and so
does not create an easement.)
In addition to the rules of creation and loss of servitudes, and the lists of specific types, there were a few general principles
about how all of them could be exercised. Most of these show that the servitude rights were not just technically attached
to the physical properties, but were thought of as closely tied to them. First, the servitude holder could not demand any
help from the other property owner. You might have a right to walk across your neighbor’s land or draw water from his spring,
but he didn’t have to clear a path or provide containers. Second, you had to minimize the disruption caused by exercising
your rights. Driving a herd across your neighbor’s land to get to market was no excuse for wandering through the farmhouse,
much less grazing on his crops. Finally, the benefit from your exploitation of your right had to be tied to the land it came
with. For instance, you could draw water to irrigate your farm, but not to sell or even to share with your neighbor on the
other side. So servitudes were narrower than, say, the mineral rights often sold in the American West, which are specifically
designed for commercial exploitation.
In Roman law, as in the United States and England today, it is possible for something to have more than one owner at once.
This would be most common in the case of the heirs to a given estate (the children typically inheriting the family farm jointly)
or business partners owning the assets of the business together. (Note that there is a difference between two partners who
each own a store and two partners
both of whom own half of two stores. The law allows either.) In theory, any number of people could own the same object. Moreover,
while equal shares were common, any division of percentages could be used. In many respects, each owner could exercise the
full rights of ownership as if she had no co-owners. She could reclaim the object
from nonowners and was free to sell her share of ownership (to the extent allowed by the law of sale in general). The main
problems were encountered, of course, in conflicts between owners. In theory, any owner could veto any use of the property
intended by another, though there was no right to “roll back” actions already taken. Joint owners were also liable to the
other owners if they were responsible for damage to the property. Contrast the sole owner of, say, a house, who was broadly
free even to burn it down. It was also possible for any of the joint owners to go to court to force a division of property,
with the result that each person would be the sole owner of some part, instead of each owning a share of the whole. This required
accounting for the relative shares of the parties, their respective wishes, and the preservation of overall value (no one
benefits, after all, from dividing a chariot by sawing it in half). It is important to note in the case of business partnerships
that Roman law had no corporations, so you couldn’t share ownership of “the business” as a whole, only of specific assets:
buildings, equipment, items of stock, (slave) employees, and so on. More abstract aspects of the business (e.g., debts) could
be shared indirectly by way of the contract of partnership (see
Chapter 12), and liability could be partially limited by the original contributions to the partnership. Still, there was no way to automatically
link ownership to partnership.