What Is Limiting Roman Ownership

1 Introduction Professor Peter Birks’ held that Roman ownership was, broadly speaking, unrestricted. This assignment will consider Birks’ statement regarding the absoluteness of Roman ownership. Roman ownership, relating to the Roman law of things, will be discussed, as well as, the different factors limiting Roman ownership, and restrictions placed on Roman owners, to determine whether Roman ownership was as absolute as it would seem or whether it was confined with interred restrictions.
2 The scope of Roman ownership Ownership in both classical and Justinian law was the most comprehensive private right to a thing anyone could have. The owner had all the power, which the law allowed him. It is important to first note that there was no certain definition in Roman law to describe one’s control and ownership over one’s res. A res are things or property and refers to anything with economic interest and value that a person could hold in respect thereof.
Nearing the end of the late Republic and early Empire, a word originated that would express ownership namely, dominium, derived from the Latin word “Dominus” means “Lord”; the master of his property. Dominium
was the most complete and extensive right a Roman citizen could have in respect to a corporeal thing and meant absolute ownership along with the right to possess, use, and alienate. Dominium was a specific type of ownership only capable of being held by Roman citizens or persons with ius commercii (the right to trade in Rome). However, dominium was difficult to classify, the Romans knew what it implied, but its definition proved difficult to describe. To opine that dominium was mere ownership would be incorrect, as three different forms of ownership later came into legal existence. Peregrine ownership was an ownership title later awarded for peregrini (foreigners), who in general did not have commercium and could therefore not have dominium. Ownership of provincial land could not be held by a privatus (an ordinary person), given that it was vested in either the populus (the people) or the emperor. A private individual could let the land from the appropriate authority, but could not become dominus over it. A bonitary or praetorian owner was the most important form of ownership, sans dominium. This type of ownership lasted until Emperor Justinian (527 to 565 CE) abolished the distinction between res mancipi and res nec mancipi. A bonitary owner was the possessor of a res, but not the dominus, until they obtained dominium over it. The Praetor protected the possession and possessorship over the specific res through the actio publiciana, in effect, a fictitious vindicatio. In order to obtain dominium, three conditions had to be adhered to in Roman law.
The acquirer had to have commercium (the right to trade in Rome), the property or thing had to be capable of being owned privately (public things could not be privately owned), and the appropriate mode of acquiring property must have been adhered to. From the above, it is evident that dominium solely did not provide for the right to use and benefit from the res due to the development of bonitary ownership. According to Mr J.A.C. Thomas, dominium was “…simply the ultimate legal title beyond and above which there was no other.” After considering the difficulties of defining the ultimate ownership title, and other ownership types, dominium does not appear to be as distinctive as interpreted by
Birks.