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ROMAN LAW, First part, of the real rights

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Ricardo Cantú

on 13 February 2017

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Transcript of ROMAN LAW, First part, of the real rights

ROMAN LAW
Pag. 229-234
Generalities
2)
The proprietor has an absolute power over the thing, but with certain limitations, according to the roman law.
A)
Law of the XII tables: The proprietor can not cultivate their own land or build until the divisory line of the neighbour (two and a half feet).
B)
Can not change the course of the rain waters.
C)
It seems as though the romans did not know the expropiation because of public utility, even though there where particular cases expropriated because of general interest.

Elements and characteristics of the right of property
In the civil law, the property is recognized like the most complete of all the real rights.

The Light-
¿Who can deny me the right to build a wall if I can, as tall as the tower of Babel? Well, the thousand neighbors who I leave in darkness can deny me that right. Those are the origins over the dispute of property.

Chapter 1, of the property
These people will have real rights over the thing, these real rights
(jura in re aliena)
are called servitudes. Understand the usage
(jus utendi)
, gain
(jus fruendi)
and just the abuse
(jus abutendi)
stays exclusive to the owner.

Unchangeable Right– (Don´t change)
Since the beginning the benefits of modern legislations mention that man can obtain a thing, are the same.

Action in rem (real) –
It´s a property that a man has over a certain determined thing, is the owner of the thing, in other words he has complete possesion to make or destroy however he sees fit.

Action in personam (personal) –
Will give the owner of the right of credit. In other words, a relationship between two people, that one of them two can demand a certain loan owed to him from the other.

Servitudes
– Are rights separated from the property, real rights over the property of others, the proprietor concede to other people some of the advantages that he enjoys. This benefits or advantages are resumed in usage, gain and abuse.

Personal
– Are established over a certain thing stationary or nonstationary in benefit of a determined person, without being hereditary.

Real
– A tax over a property in benefit of another property with a different owner.

Generalities
1)
The roman law specialists don´t defined the right of property, that is the most complete right that exist over any corporal thing. Only study their benefits. (usage, gain and abuse).

Usage: jus utendi –
Is to make a certain thing work for all the possible uses and to take advantage of its services.
Gain: jus fruendi o fructus –
Its the rights of pick up all the products and gains.
Abuse: jus abutendi o abusus –
Is the power to consume the thing, in definitively (destroying it).

Chapter 1, of the property
Elements and characteristics of the right of property
The property can limit itself to the
co-property
. Its co-property when there are two owners of one thing, both have the same rights. It is said that it is in state of indivision, in other words, they are
co-proprietors
, one can not dispose of the property without consent of the other.

Elements and characteristics of the right of property
3) Organization of the roman property

From the first centuries of Rome, the property was organized by the civil rights, following precise rules. The Romans only admit one class of property (
dominium ex jure quiritium)
, that is supported in determined form (in other words, you are proprietor or you are not). The proprietor whose thing is taked from him, can calim against who have it.
(acción in rem, rei vindicatio).

ACCION REIVINDICATORIA. (REI VINDICATIO) EXCEPCION A LA (INTERPRETACION DE LOS ARTICULOS 799 DEL CODIGO CIVIL DEL ESTADO DE NUEVO LEON Y DEL DISTRITO FEDERAL).

El artículo 799 del Código Civil del Estado de Nuevo León, idéntico en contenido al de igual número del Código Civil del Distrito Federal, previene que el poseedor de una cosa mueble perdida o robada, no podrá recuperarla de un tercero de buena fe que la haya adquirido en almoneda o de un comerciante que en mercado público se dedique a la venta de objetos de la misma especie, sin reembolsar al poseedor el precio que hubiere pagado por la cosa; y que el recuperante tiene derecho a repetir contra el vendedor. La citada disposición establece una excepción a la acción reivindicatoria, fijando como requisito que el tercer adquirente de buena fe, de quien se pretende recuperar un objeto mueble, lo haya adquirido en almoneda o de un comerciante establecido públicamente y que se dedique a la venta de objetos de la misma especie.

Tesis aislada de la Suprema Corte de Justicia de la Nación
Elements and characteristics of the right of property
4) Division of the property (hard time period to know)

The property of the
res mancipi
can not be transfered, only in the form of civil rights
(la mancipatio, la in jure cessio)
, and not through a simple transaction. In order to someone to be proprietor, it is indispensable that the thing is in their power for a mount of time to consume (
usucapión
), its to say, a year for stationary goods and two for nonstationary goods.

According to the expression consecrated is had
in bonis (in his own goods)
and in natural right should be proprietor.

The one who was ALWAYS the proprietor according to the civil rights, had the next title:
nudum jus quiritium,
considering two different properties the buyer that have the thing
in bonis (bonitary)
, proprietor in the natural right, proprietor bonitary or praetorian propieraty; While he conserve the name of propriertor.
quiritario, ex jure quiritium.
In able to say that the one who reunites those properties
(bonitary and quiritarian)
has the
dominium ex utroque jure.

Elements and characteristics of the right of property
Elements and characteristics of the right of property
5) Advantages to the bonitary

Dominium ex utroque jure
was the next ones:

If the proprietor, making his title prevail, will want to exercise against him, the
rei vindicatio,
the praetor concede to the bonitary to refuse an
exception
funded over his title of adquisition.

If the
thing (res)
has taken away from the propietor bonitary, turning on his possesion, the praetor concede a special action
in rem
, the actio publiciana, the action thanks to the one to triumphs, until against the proprietor
quiritium.

The proprietor wins the gains of the
thing (res)
, and in he is a slave he must have
in bonis
he take advantage of all his possessions.

Elements and characteristics of the right of property
6) Bonitary property

If the bonitary property started by the tradition of a
res mancipi,
received outside of this case numerous applications, in effect, in other various cases existed the same opposition between natural rights and civil rights.

It was equal and conform to the natural right that certain people are able to be proprietor, can not call upon a civil mode of acquisition, every time that this conflict was presented, there was division of dominion.

Elements and characteristics of the right of property
In the time period of Justiniano the majority of the causes dissapear that motivating the splitting of the property.
(The distinction of
res mancipi
and
nec mancipi
it don´t exist anymore, The praetorian succession was suppressed, also the
nodum jus quiritum
it don´t exist anymore). In this time period any person being bonitary property had complete control over the property
(plenissinuss et legitimus).
 

7) In the splitting of the property. (Time period on Justiniano)

Elements and characteristics of the right of property
8) First form of the territorial (After the foundation of Rome)

In this point there is no certainly in the texts (confusion).
In the primitive societies the property goes through three faces:
Rural commuity. (collectivity, it belongs to everyone), family property (families had properties, they are proprietary) and individual property (to every citizen).

Conforming to the roman conquest in italy, generally applicable to the territories of the populations beat at past to be property of the roman state. According to the nature of the land was made a different employment. One part was destined to make more of the private property. (uncultivated and cultivated lands).

FIRST PART - OF THE REAL RIGHTS

Maestro
: Lic. José Luis Estrada Rdz

Alumno
: Ricardo David Cantú López
Full transcript