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Occupatio (occupation) was an original method of acquiring ownership of un-owned property ( res nullius ) by occupying with intent to own.
Nicholas argues this is the "archetype" of all other Roman law methods of original acquisition. [1] According to the Roman jurist Gaius, any previously unowned thing becomes the just property of the first occupant able to "capture" it: [2]
§ 66. Another title of natural reason, besides Tradition, is Occupation [occupatio], whereby things previously the property of no one become the property of the first occupant, as the wild inhabitants of earth, air, and water, as soon as they are captured.
§ 67. For wild beasts, birds, and fishes, as soon as they are captured, become, by natural law, the property of the captor, but only continue such so long as they continue in his power; after breaking from his custody and recovering their natural liberty, they may become the property of the next occupant; for the ownership of the first captor is terminated. Their natural liberty is deemed to be recovered when they have escaped from his sight, or, though they continue in his sight, when they are difficult to recapture.
Abandoned goods ( res derelictae ) was also res nullius and subject to acquirement through occupatio. Land, however, was excluded and could not be acquired using occupatio. [3]
The Roman law occupatio has continued relevance in present times, partly due to its adoption by legal systems across Europe, Africa and North America. It is also used in international law.
Legal systems across the modern world continue to employ a form of occupatio. A full discussion of each legal system is outside the scope of this article, see: South African property law, civilian property law, Scots Law, Occupatio (Scots law).
International law adopts much of Roman property law in regards to acquisition of sovereignty due to the European nature of early European discovery voyages such as Christopher Columbus. [4] Occupatio was later employed under public international law as the basis of acquisition of states ownership of vacant territory (often including land already possessed by indigenous populations). [5] An example of occupatio under international law is the United Kingdom's acquisition of ownership of Rockall in the North Atlantic Ocean by the Island of Rockall Act 1972. [6] [7] [8]
Terra nullius is a Latin expression meaning "nobody's land". Since the nineteenth century it has occasionally been used in international law as a principle to justify claims that territory may be acquired by a state's occupation of it. There are currently three territories sometimes claimed to be terra nullius: Bir Tawil, four pockets of land near the Danube due to the Croatia–Serbia border dispute, and parts of Antarctica, principally Marie Byrd Land.
Finders, keepers, sometimes extended as the children's rhyme finders, keepers; losers, weepers, is an English adage with the premise that when something is unowned or abandoned, whoever finds it first can claim it for themself permanently. The phrase relates to an ancient Roman law of similar meaning and has been expressed in various ways over the centuries. The 1982 English Court of Appeal case Parker v British Airways Board expanded the phrase, with the judgement of Donaldson L.J. declaring "Finders keepers, unless the true owner claims the article". Difficulties arise when exploring how best to define when exactly something is unowned or abandoned, which can lead to legal or ethical disputes, especially as jurisdictions often differ in their approach.
The homestead principle is the principle by which one gains ownership of an unowned natural resource by performing an act of original appropriation. Appropriation could be enacted by putting an unowned resource to active use , joining it with previously acquired property, or by marking it as owned.
Usucaption, also known as acquisitive prescription, is a concept found in civil law systems and has its origin in the Roman law of property.
Self-ownership is the concept of property in one's own body, often expressed as the moral or natural right of a person to have bodily integrity meaning the exclusive right to control one's own body including one's life, where 'control' means exerting any physical interference and 'exclusive' means having the right to install and enforce a ban on other people doing this. Since the legal norm of property title claim incapacitates other people from claiming property title over the same resource at the same time, the right to control or interfere with one's own body in any arbitrary way is secured. Anarcho-capitalism defines self-ownership as the exclusive right to control one's body as long as the owner does not aggress upon others, leading to the concept of the sovereign individual. In Minarchism the 'exclusive right' is understood by separating the 'liberty-to' from the 'liberty-from' where for each person the 'liberty-to' is restricted by all the 'liberty's-from' of others, effectively subjecting the 'liberty-to' to the ban on the usage of force. Thereafter self-ownership means the exclusive right to control one's body insofar considering action between inhabitants and not involving the state, making it roughly a pacifist morality only among inhabitants. Self-ownership is a central idea in several political philosophies that emphasize individualism, such as libertarianism and liberalism.
Res nullius is a term of Roman law meaning "things belonging to no one"; that is, property not yet the object of rights of any specific subject. A person can assume ownership of res nullius simply by taking possession of it (occupatio). However, in ancient Rome, certain forms of res nullius could never be owned because they were considered to belong either in common to all or to the divine rather than human dominium. The use of res nullius as a legal concept continues in modern civil legal systems.
The ius gentium or jus gentium is a concept of international law within the ancient Roman legal system and Western law traditions based on or influenced by it. The ius gentium is not a body of statute law nor a legal code, but rather customary law thought to be held in common by all gentes in "reasoned compliance with standards of international conduct".
Uti possidetis is an expression that originated in Roman private law, where it was the name of a procedure about possession of land. Later, by a misleading analogy, it was transferred to international law, where it has had more than one meaning, all concerning sovereign right to territory.
Unowned property includes tangible, physical things that are capable of being reduced to being property owned by a person but are not owned by anyone. Bona vacantia is a legal concept associated with the unowned property, which exists in various jurisdictions, with a consequently varying application, but with origins mostly in English law.
Accessio is a concept from Roman property law for acquiring ownership of property which is merged, or acceded to, another piece of property. Generally, the owner of the principal, whatever it may be, also became the owner of the accessory. Its usage continues in modern times in legal systems around the world incorporating Roman property law, primarily civilian legal systems.
The discovery doctrine, or doctrine of discovery, is a disputed interpretation of international law during the Age of Discovery, introduced into United States municipal law by the US Supreme Court Justice John Marshall in Johnson v. McIntosh (1823). In Marshall's formulation of the doctrine, discovery of territory previously unknown to Europeans gave the discovering nation title to that territory against all other European nations, and this title could be perfected by possession. A number of legal scholars have criticized Marshall's interpretation of the relevant international law. In recent decades, advocates for Indigenous rights have campaigned against the doctrine. In 2023, the Vatican formally repudiated the doctrine.
Specificatio is a legal concept adopted from Roman law. It is an original mode of acquisition, since it involves deriving rights over objects that are not subject to pre-existing rights of ownership.
The inter regalia are the rights falling to the Crown in Scots Property law. The term derives from Latin inter (among) and regalia.
Usucapio was a concept in Roman law that dealt with the acquisition of ownership of something through possession. It was subsequently developed as a principle of civil law systems, usucaption. It is similar to the common law concept of adverse possession, or acquiring land prescriptively.
Res extra commercium is a doctrine originating in Roman law, holding that certain things may not be the object of private rights, and are therefore insusceptible to being traded. The doctrine encompasses entities such as humans, public areas, organs, citizenship, and prostitution, and is an exception to the general principle of freedom of contract.
A number of methods of acquisition of sovereignty are or have been recognised by international law as lawful methods by which a state may acquire sovereignty over territory. International law adopts much of Roman property law in regards to acquisition of sovereignty due to the underlying European civil law at the time of early discovery voyages such as Christopher Columbus. The basis of acquisition of states ownership of vacant territory therefore continues to apply,.
Furtum was a delict of Roman law comparable to the modern offence of theft despite being a civil and not criminal wrong. In the classical law and later, it denoted the contrectatio ("handling") of most types of property with a particular sort of intention – fraud and in the later law, a view to gain. It is unclear whether a view to gain was always required or added later, and, if the latter, when. This meant that the owner did not consent, although Justinian broadened this in at least one case. The law of furtum protected a variety of property interests, but not land, things without an owner, or types of state or religious things. An owner could commit theft by taking his things back in certain circumstances, as could a borrower or similar user through misuse.
Occupatio or occupation is a method of original acquisition of property in Scots law. It derives from the Roman law concept of the same name. Occupatio allows an occupier of an object (res) with the intention to own the property to become the owner. As most property in Scotland is owned, and with the caduciary right that all ownerless property falls to the Crown, its application is uncommon. Nevertheless, it remains a valid method of acquiring ownership in Scots law.
Accession is a method of original acquisition of property under Scots property law. It operates to allow property to merge with another object, either moveable or heritable. Accession derives from the Roman-law concept of the same name. Other jurisdictions employ similar rules. The leading case in this area is said to be Brand's Trustees v Brand's Trustees (1876) 3 R (HL) 16.
Possession in Scots law occurs when an individual physically holds property with the intent to use it. Possession is traditionally viewed as a state of fact, rather than real right and is not the same concept as ownership in Scots law. It is now said that certain possessors may additionally have the separate real right of ius possidendi. Like much of Scots property law, the principles of the law of possession mainly derive from Roman law.
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