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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. This may be compared with the original modes of acquisition, and other derivative modes of acquisition, such as accession. Specificatio occurs where new property rights are established as a result of some action upon objects – owned by someone else – that results in a change of species.
In Roman law, specificatio referred to the acquisition of a new species arising from a change of species.
A nova species was created when the new thing had a new identity or name. Nicholas [1] rationalises this rule by reference to the rei vindicatio which requires the vindicator to name the subject of the rei vindicatio. The rights over the old items became extinguished if one could not name the item and have the iudex recognise it in the thing.
The tests mentioned by Thomas [2] are:
In the Institutes of Gaius, [3] Gaius refers to a number of examples where this process occurs, and cites two conflicting schools of thought on the question of ownership.
Nicholas and Thomas consider the philosophical background of the two doctrines. The Stoic view gave primacy to matter, whilst Aristotle considered that form or essence was what mattered most. Nicholas considers that the Aristotelian form faces the same difficulty of definition as 'identity'. Andrew Borkowski [4] considers that the Proculians treated specificatio as a form of occupatio . At the moment of its creation, a nova species was regarded as a res nullius open to the first occupier, and for that reason it should be held to belong to the creator.
The solution in Justinian's Institutes was a compromise measure, known as the media sententia (or middle way). The owner of the raw materials or substance would own the nova species where the nova species could be reduced to its former component parts or raw materials without excessive difficulty or expense. If the nova species was irreducible, it was held to belong to the creator. Where the creator contributed any substance, then the maker owned it as he would have contributed both parts and labour. The issue of good faith (bona fides) was irrelevant to ownership, only to compensation.
Commentary on the media sententia
Nicholas criticises the media sententia as it did not take into account the relative importance of the materials and the maker's skill. Borkowski suggests that the test was not feasible if there was nothing left of the original material, e.g. if the creator chipped away at bronze to make a statue. The French and German civil codes take such considerations into account, e.g. the French system gives the nova species to the owner of the substance unless the work exceeds the materials, and the Germans reverse this balance. In both cases, compensation must be made to the party who loses out.
The classic example of the reducibility test failing is where there is a bronze statue and a marble statue.
According to both Nicholas and Thomas, the general principles were the same as those for accessio . In relation to the material owner, possession would grant the exceptio doli mali until the costs of materials were paid, whilst theft would grant an action of theft and a condictio furtiva. In relation to the creator who does not own through specificatio, possession would grant an exceptio to the rei vindicatio.
Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual property. Property can be exchanged through contract law, and if property is violated, one could sue under tort law to protect it.
Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.
Usucaption, also known as acquisitive prescription, is a concept found in civil law systems and has its origin in the Roman law of property.
Usufruct is a limited real right found in civil law and mixed jurisdictions that unites the two property interests of usus and fructus:
Rei vindicatio is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may be used only when the plaintiff owns the thing, and the defendant has wrongly claimed or assumed possession of the same thing, and is currently impeding the plaintiff's possession of the thing. The term originated in ancient Rome.
Accession has different definitions depending upon its application.
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.
In Roman law, status describes a person's legal status. The individual could be a Roman citizen, unlike foreigners; or he could be free, unlike slaves; or he could have a certain position in a Roman family either as head of the family, or as a lower member.
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.
Occupatio (occupation) was an original method of acquiring ownership of un-owned property by occupying with intent to own.
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.
Scots property law governs the rules relating to property found in the legal jurisdiction of Scotland. As a hybrid legal system with both common law and civil law heritage, Scots property law is similar, but not identical, to property law in South Africa and the American state of Louisiana.
Consensu or obligatio consensu or obligatio consensu contracta or obligations ex consensu or contractus ex consensu or contracts consensu or consensual contracts or obligations by consent are, in Roman law, those contracts which do not require formalities.
South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law. Among the formal functions of South African property law is the harmonisation of individual interests in property, the guarantee and protection of individual rights with respect to property, and the control of proprietary management relationships between persons, as well as their rights and obligations. The protective clause for property rights in the Constitution of South Africa stipulates those proprietary relationships which qualify for constitutional protection. The most important social function of property law in South Africa is to manage the competing interests of those who acquire property rights and interests. In recent times, restrictions on the use of and trade in private property have been on the rise.
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.
In Roman law, contracts could be divided between those in re, those that were consensual, and those that were innominate contracts in Roman law. Although Gaius only identifies a single type of contract in re, it is commonly thought that there were four types of these, as Justinian identifies: mutuum, commodatum, depositum (deposit) and pignus (pledge).
Literal contracts formed part of the Roman law of contracts. Of uncertain origin, in terms of time and any historical development, they are often seen as subsidiary in the Roman law to other forms. They had developed by at the latest 100 BC, and continued into the Late Roman Empire.
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.