Roman Law2 presentation

8/10/2019 Roman Law2 presentation

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Roman Law :

LAW ON THINGS(continuation...)

Analie P. Esquil la LO1



Classes of Personal Servitude

in Roman Law :

a. Usufructus

b. Usus

c. Habitatio

d. Operae



a. Usufructus as defined...

In Roman Law:

- is the right to use

and take the fruits

the property of

another, the subject

matter or source ofthe fruits being left

intact

In Philippine Civil

Code:

- (Art. 562) it gives theright to enjoy the

property of another

with the obligationof preserving its

form and substance



Rights of a Usufructuary...

In Roman Law:

1. entitled to the

possession of the

property & could

make lawful use of it

2. entitled to enjoy the

thing in particular form in which he

receives it.

In Philippine Civil Code:

1. Art. 562

-combination of jus utendi

(right to use) and jus

fruendi (right to the fruits)

2. Art. 566

-entitled to all the

natural,industrial & civil

fruits of the property in

usufruct



Rights of a Usufructuary...

In Roman Law:3. could release or surrender his

rights to the owner but could

not alienate it absolutely to a

3rd party.

4. could assign by way of pledge

or mortgage his interest to

another, the actual legal rightremaining in himself.

5. complete right to get all the

products of the res if he chose

to.

In Philippine CivilCode:

continuation...

With respect tohidden treasure

which may be

found on the landor tenement, he

shall be

considered a

stranger.



Obligations of a Usufructuary...

In Roman Law:1. must pay the taxes &

assessments on the property

held in usufruct

2. must use the property as acareful man; must not

commit waste but must keep

the property in good

condition, until theexpiration of the usufruct,

by making proper

replacements and ordinary

repairs.

In Philippine Civil Code: stated in Art. 583...

1. to make after the notice

to owner or his

legitimate representative

an inventory of all the

property, which shall

contain an appraisal ofthe movables and a

description of the

condition of the

immovables



In Roman Law:

3. protect the property

from trespass and to

restore it reasonablyintact.


2. to give security, binding

himself to fulfill the

obligations imposedupon him in accordance

with the law.

Obligations of a Usufructuary...



Obligations of the Owner of the property

subject to usufruct...

In Roman Law:1. The naked owner must

suffer the exercise of the

usufruct without doinganything to prejudice the

rights of the

usufructuary. As long as

the usufruct lasted, therights of the holder of the

bare legal title were

virtually held in

abeyance.

In Philippine CivilCode:

Chapter 3 under the

Obligations of theUsufructuary

- the owner is more or

less passive and

allows theusufructuary to enjoy

the thing given in the

usufruct



Quasi-usufruct...

In Roman Law:

Means that a usufruct of fungible goods thatmight be created by will. The so-called fructuary

of course became the owner of the oil or the wine

or money so bequeathed, but had to furnished

security (cautio), that he would restore the samequality & quantity of the consumable things he

received - an obligation which fell on him.



Quasi-usufruct...

In Roman Law:

The result is the same with a true usufruct, but

the legal form which the transaction assumes is but

of ownership encumbered with an obligation. The

fact that it is bound to give a security, reduces his

ownership on the consumable things, in some

degree, to the level of the rights of a mereusufructuary.



Quasi-usufruct...

In Philippine Civil Code: Art.574...

Whenever the usufruct includes things which

cannot be used without being consumed, the

usufructuary shall have the right to make use of

them under the obligation of paying their

appraised value at the termination of the

usufruct,if they were appraised when delivered. In case they were not appraised, he shall have

the right to return the same quantity & quality,

or pay their current price at the time the

usu ruct ceases.



b. Usus ...Quasi-usufruct...

1. Lesser right than usufruct since it is merely

a right of a user without the absolute right

of fructus (fruits).

2. It confers on the usuary a real right for life,

necessary for the satisfaction of his own

personal requirements

b. Usus ...



b. Usus ...

3. The usuary could not however, alienate

the use. He is disbarred on the principle from letting or selling his right.

4. He is not bound to make repairs bu if the

property yielded no fruits for the owner,the usuary was under the obligation to

repair.



c. Habitatio ...

In Roman Law:1.is a real right for life to live in a house not one's

own after the manner of a person entitled to

maintenance.

2. It is the owner of the house who determines in

what manner & in what part of the house the

habitator shall live.

3. The object of habitatio being to enable thehabitator to support himself, he is entitled to

enjoy the benefit intended to be conferred on him

in the shape of money.



d. Operae ...In Roman Law:

1. Services of Slaves (operae servorum) or animals (operae

animalium) – were rights to the services of slaves or

animals belonging to another. He who has the right to a

slave is not permitted to transfer his right to another since it is purely personal.

2. Services of Slave (operae servorum) – the right did not

terminate by the death of the slave or slaves only.

In this respect both differed from usus and usufruct which

were extinguished by the death of the usufructuary.

3. Operae Servorum vel animalium was not lost by non-

usage.



Modes of Creating Personal Servitudes...

In Roman Law:

1. by contract

2. by will

3. by judicial decree or

adjudication

4. by prescription

5. by special law

In Philippine Civil

Code:

Art. 620...

1. by title

-e.g. law, donation,

testamentary

succession, contract2. by prescription (10

yrs)





In Roman Law:

4. by renunciation or

voluntary surrender of

the right or servitude tothe owner

5. by non-user for the

period of prescription

6. by destruction of

property subject to the

servitude


Continuation...

4. by expiration of the term

or fulfillment of thecondition

5. by renunciation by the

owner of the dominantestate

6. by redemption agreed

upon

Modes of Terminating Personal Servitudes...



Praedial Servitudes...

In Roman Law:

-are burdens imposed

upon immovable

property land orbuildings for the benefit

of other immovables

regardless of the

persons who happen toown the two estates; the

dominant & servient.


Art.613..

-an encumbrance imposed

upon an immovable property for the benefit

of another immovable

belonging to a different

owner.



Classes of Praedial Servitudes...

In Roman Law:

1. Rustic or Rural – more frequently exercised in

the country2. Urban – exercised in the city

Note: however, that distinction does not relate tothe location of the land with which immovable

property is connected.




In Roman Law:

1. Rustic or rural servitudes

a. I ter - means footpath, a

right to pass ,to walk butnot to drive animals or a

carriage. The width of an

iter was whatever was

determined by the grant& the right could be

granted to as many

persons as the owner of

the servient land wished.


1. Art. 649-657

- Easement for r ight of

way




In Roman Law:

1. Rustic or rural servitudes

b. Actus- is the right of driving a beast of burden or

cattle, or chariot, or a cart over the land of another. Itincludes the right of iter & its width as in iter depended

upon agreement.




In Roman Law:1. Rustic or rural servitudes

c. Via – is a more comprehensive term than actus since it

includes and in addition gives the right to drive a loadedcart or wagon or even to haul timber or stone. By the

law of the Twelve Tables, the width of a via was fixed at

eight feet where the road was straight, but in case of a

turn in the road, sixteen feet were allowed. However, avia could be created for more or less than eight feet,

provided the width was sufficient for the purpose.





d. Aquaeductus – is a right to conduct water across or

from another's land to one's own land by means of pipes,trenches or canals. The terms of the grant usually

determined the location of such a course, but Paulus

says that a grant of a watercourse across one's land

without a designation of the location subjects the whole servient estate to the servitude.


Section2: Easements Relating to Waters Art. 644-648





e. Aquaehaustus – is the right of taking water by means of

buckets or other vessels from the spring, fountains, or pond of another. When one has a right to draw water, he

is held to have a right of iter also in order to have access

to the water.


Art. 641.. Easements for drawing water




In Roman Law:Other rural servitudes

a. Pecoris ad appulsum - is the right to drive cattle to

water on the land of another

b. Jus pascendi – is the right to pasture cattle on the land

of another

c. Calcis coquendae – is the right to burn lime on the

servient estate.d. Arenae fodiendi – is the right to dig for sand

e. Lapidis eximendi – is the right to take stone from

another's quarry.




In Roman Law:2. Urban Praedial servitudes

- these are connected with buildings. These deal with

immovables erected upon land. The most common

servitudes pertaining to buildings are the following:

a. Oneris Ferendi (r ight of support) – the owner of a

house may have the right to make use of the wall or

building of an adjoining owner as a support for his own. It may be a duty upon the whole of a neighboring

building. In either case, the servient owner is bound to

keep his building or wall in repair so as to furnish the

support he owes.




In Roman Law:2. Urban Praedial servitudes

b. Tigni Immittendi (r ight to insert beams in a

neighbor ing wall) – the right to insert a beam, tile, stone

or piece of iron in or upon a neighbor's walls was known

as Servitus Tigni Immittendi. The right, however, did not

impose any legal duty upon the servient owner to keep

the wall in repair.




In Roman Law:3. Projiciendi et Protegendi

- the right of having a part of one's building project over

the project over the land of another as, for example, in

case of a projecting balcony. It involved no right of

support or right to insert a beam, in another's building,

but merely created a right that a certain part of one's

building, as for example, the eaves, a projecting windowor a balcony might overhang the land belonging to

another.




In Roman Law:d. Stil l icidl i - was primarily the right to have the rain

water from the roof of one's house to flow its natural

course upon a neighbors land. Other forms of this

servitude consisted in a right to conduct, by means of a

pipe, the rain water from one's roof to adjoining land, or

the right to receive such water from a neighbor's house

in one's garden or cistern.




In Roman Law:e. Altius Tolendi et Non Tolendi - the right which the

owner of land has to prevent an adjoining owner from

erecting buildings upon his land beyond a certain height.

In this way, the owner of the dominant estate could

insure his prospect and light from being impaired.

“Light” means a view of the sky and “prospect”means

an unobstructed view of the lower levels.




In Roman Law:e. Other Urban Servitudes

– Right to maintain a drain or sewer through

neighboring premises

– Right to allow smoke from household fire in one's

home may be a servitude be carried off thru the

chimney of an upper or a side dweller.

– Right to have the light of day uninterrupted by anybuilding, trees or other obstructions upon

neighboring premises.




In Roman Law:Positive and Negative Servitudes:

Negative servitude - is a right to prevent one from doing

something which without such restriction he could

lawfully do as where one by right of such a servitude

may prevent an adjoining owner from building above a

certain height.

Positive servitude – is a right to do what one without such right, could not lawfully do, as a right to go over

the land of another.




In Roman Law:Examples of Positive Servitudes:

- right of way

- right to draw- right to drive cattle to water

- right to dig sand

- right to burn lime- right to project a roof or balcony over adjoining land

- right to place beams in an adjoining wall

- right to support houses on a party wall




In Roman Law:Examples of Negative Servitudes:

- to prevent the adjoining proprietor from building

above a certain height, or its opposite, the right todaylight or its opposite

- right to prospect or its opposite

- right of turning water on a neighbor's land.




In Roman Law:Active and Passive Praedial Servitudes:

Passive – if it is merely permissive since the servient

owner merely permits something to be done on his land

or refrains from doing some particular thing

Negative – when the servient owner is bound to keep his

wall or building in repair and consequently makes theright which is in the case of the servitude of support.






In Roman Law:

Modes of Creating Praedial Servitudes:

a. Under the Jus Civile – it can be acquired by

agreement in jure cessio, by legacy, adjudicatio

b. Under the Praetor – by parties entering intoa pactio or informal agreement




In Roman Law:

Modes of Creating Praedial Servitudes:

c. Under Justinian1. pacts and stipulations

2. deductio

3. prescriptio longi temporis4. testament

5. adjudicatio

6. express provision of law




In Roman Law:

Modes of Terminating Praedial Servitudes:

a. Merger or confusio

b. Renunciation or Voluntary Surrender

c. Destruction of Landd. Non-user



Praetorian Servitudes...

In Roman Law:Praetorian Servitude – is due to the development of

certain dismemberments of the right of ownership

which are conveniently termed “praetorian

servitudes” namely:

a. Emphyteusis

b. Superficies

c. Pledge

d. Mortgage

e. Lien




In Roman Law:

a. Emphyteusis – a real right in the property of

another. From a Greek word compounded from “en”

upon and “phuteuo” grafted, or grafted upon, the

dominium or ownership. It was a long lease, usually a

perpetual lease of large tracts of lands, whereby the

tenant, known as the emphyteuta had practically all therights of an owner, the technical owner, dominus,

having only a naked title.




In Roman Law:

Nature of Emphyteusis

– It was an agreement between the emphyteutaand the dominus was neither a contract of hiring

or sale, but a special kind of juristic act and that

the legal relationship created by emphyteusis

was sui generis and was governed by rules of itsown.




In Roman Law:Rights of Emphyteuta

1. entitled to exercise all the rights of an owner as long

as his right last

2. has the full right to take, not only the fruits, but all

the produce of the land

3. the right of usufructuary or a mere lessee for a short

term of years and has not make improvements & changemode of cultivation




In Roman Law:Obligatons of Emphyteuta

1. He must pay his annual rent

2. He must not deteriorate the property3. He must give his landlord notice of his intention

to dispose of his rights as perpetual lessee so that the

landlord may, if he chooses, exercise his right of pre-

emption (jus promitiseos)

In case of failure to comply of any of these duties, the

landlord may deprive the emphyteuta of his rights as

perpetual lessee.




In Roman Law:Rights and Duties of the Legal Owner:

The holder of the naked legal title was bound to

admit the buyer of an emphyteusis into possession and for

his trouble, he was entitled to a fine of 2% of the purchase

money.

Modes of Creating Emphyteusis:

a. by contract

b. by will

c. by prescription




In Roman Law:

Modes of Terminating Emphyteusis:

a. destruction of the property b. renunciation or voluntary surrender by the

emphyteuta

c. forfeiture by the emphyteutad. merger of the emphyteusus & naked ownership

e. prescription




In Roman Law:

Superficies – a right similar to emphyteusis, in that it is a

long perpetual engagement or use of anything built on land,

upon the payment of an annual rent. The builder, known as

the superficiary, was said to have superficies in the land,

and the praetor recognized this as a jus in re which he

protected by allowing proper actions for such purpose.



Praetorian Servitudes...In Roman Law:

Rights and Duties of the Superficiary:

- Has a real right for himself & for his heirs to live in

the house

- To exercise the rights of an owner therein for thespecified term of years or as the case may be

- Right to make repair upon it to improve the building,

but he could not commit waste by causing anydeterioration of the land itself.

- He could mortgage or sell his interest but the owner

had no pre-emption right. However during his death, his

right could be pass to his heirs if not previously alienated.



Donations...Donations...

Accdg to Justinian : Donatio – or gift, is

another mode of

acquiring ownership.

Gaius in his Institutes

does not place donation

among the various

modes of acquiring property but as a pact

or contract

In Roman & Modern Lawlike in Philippine Civil

Code:

(Art. 725) Donation – is an

act of liberality whereby

a person disposes

gratuitously of a thing or

right in favor of another,who accepts it.



Donations...

In Roman Law:Kinds of Donatio

1. Donatio Intervivos – one made without any

consideration of death & is completed when donor has

manifested his intention whether by writing or not. They

were essentially irrevocable during the lifetime of the

donor.

2. Donatio Propter Nuptias – is a gift made by thehusband to the wife in consideration of the marriage

3. Donation Mortis Causa – is one created to meet

the contingency of death of the donor.



Donations...

Differences of

Donatio Mortis Causa & Legacies

a. took effect immediately

upon the death of thedonor

b. the donee must have

capacity to receive at the

time of the death of the

donor

a. to take effect, required

the heir to first enter theinheritance

b. the donee must be

capacitated to receive

both at the time the

legacy was made and at

the time of the death of

the testator



Donations...

Differences of

Donatio Mortis Causa & Legacies

c. a filius familias could

donate with his father'sconsent donate other

things mortis causa

d. a peregrinus could make

a donatio

c. a filius familias before

Justinian's time couldnot give out as legacy

anything but his

peculium castrense

d. a peregrinus could not

give a legacy.





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Roman Law2 presentation