Roman Law: Property Transfer Methods

Mancipatio

Procedures

It is based on a formula. The declaration of the formula is made by the mancipio accipiens (the person who wants to buy the thing). It is an act performed per aes et libram (with copper and balance). From the appearance of currencies, the balance is no longer used as coins are utilized. Declarations are made by both the transmitter and the buyer. In a solemn declaration (nuncupatio), the transmitter makes solemn declarations before the formula.

Actions

Two types of actions are generated:

• Actio ex stipulatu: This is given in favor of the buyer when the seller has declared an extension over the real estate building being conveyed. It replies to twice the value of the missing part.
• Actio de auctoritatis: This occurs when a third party claims ownership of the real thing or a right to the thing and wins. This phenomenon is known as evictio (eviction).

In Iure Cessio

Purpose

It is characterized by solemnity and publicity, simulating a legal process. The acquirer becomes the plaintiff and the transmitter the defendant. It copied the legis actiones sacramento in rem, so the formula is the same. Both res mancipi and res nec mancipi may be covered in jure cessio.

Traditio

It is the transmission of ownership through which the acquirer acquires ius in re through a causa (legal basis). The causa is a legal reason for property transfer; ius in re is the right acquired based on that causa.

3 elements:

• Internal element: Intent to transmit and acquire ownership
• Material element: Delivery of the thing
• Iusta causa: The economic-social order that encourages the transfer of ownership

Purpose

In the classical period, the object is res nec mancipi. Traditio of a res nec mancipi implies the acquisition of civilian property. In Justinian law, it serves for everything, to acquire anything. There is no longer in jure cessio or mancipatio.

Cases of Fictitious Delivery (Traditio Ficta)

It involves the delivery of material things. If it is a movable object, the delivery is done hand-to-hand. However, if it is a property, the delivery is done through the entrance to the building or land.

In classical law, it undergoes a transformation: There is a possibility that the traditio was symbolic (traditio ficta).

• Traditio longa manu: The transferor points out the thing to be transmitted. This is equivalent to the buyer taking possession.
• Traditio brevi manu: When the acquirer already had possession of the thing under a different title. There is no need for a material transfer. Example: A rental. First, the possessor is a non-owner, and then they become the true owner.
• Constitutum Possessorium: This occurs when the transferor retains possession of the property under a title different from ownership. It is the opposite of the previous case. The owner becomes a non-owner possessor.
• Traditio Symbolica (Clavium): Delivery of the keys next to a warehouse. The delivery of the keys next to a warehouse equates to the acquisition of the goods inside the warehouse.
• Delivery by Document: This appears in the Justinian era. It refers to the delivery of paper documents that are equivalent to the delivery of the thing.
  • Immovables: The document must be made public and officially recorded in a municipal archive.
  • Movables: A private document is sufficient.