Edited by Olivier Moréteau, Aniceto Masferrer and Kjell A. Modéer
Chapter 13: The genesis of concepts of possession and ownership in the civilian tradition and at common law: how did common law manage without a concept of ownership? Why Roman law did not
This chapter compares the Roman law conceptual framework regarding ownership and possession with the common law one. The notions of possession (possessio) and ownership (dominium) may arise from the Roman law distinction between possessory and proprietary remedies. The genesis of the notion of ownership at Roman law might happen in stages: from res sua (one’s own thing) to proprietas (property) and dominium (ownership). Hence, dominium, as associated with res sua, was contrasted with incorporeal rights in things of others (iura in re aliena), such as servitudes. Besides, at classical Roman law, the concept of ownership as dominium evolved in kinship with the notion of animus as a vital feature of possessio, alongside corpus. Only Bartolus’ medieval ‘revolutionary’ definition of dominium as ius in rem severed a link between possession and ownership as both belonging to the realm of corporeal things, in contrast to intangible ‘rights’. At common law, the key concept was seisin, i.e. possession. One may look at possession at common law using Roman law terms (seeing seisin as civil possession). A possibly better way is to explore the nature of ‘title’ at common law though the evolution of available remedies. Unlike Roman law, the common law did not embrace a strict distinction between possessory and proprietary remedies. Moreover, the evolution was in the direction of possessory and personal remedies (in tort). The common law title had never lost its (relative) possessory character to become an ‘absolute’ title (prior to the adoption of the modern land registration system).
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