In this, the first article on ownership I wish to concentrate on the protection of ownership in Roman law for two reasons: firstly, as private ownership is one of the most fundamental and oldest rights¹ known to man and secondly, because private ownership is the basis of Western civilizations socio-economic successes. The Romans considered the protection of private ownership of equal importance. Without the concept of private ownership and the concomitant right to protection thereto, Western civilization would have fallen apart as did the erstwhile Communist states of Eastern Europe. Another example is the excesses of the government in Zimbabwe, an African state across the border from South Africa (I add this not to open a political debate, but merely refer to this country to illustrate the point). In Zimbabwe the right to private ownership is flouted in such a manner (farmers are ejected from their farms without due process of law) that the international community lost total confidence in that country. The economy (a liter of petrol costs US$ 50-00) of Zimbabwe is now in such a state that its citizens are facing starvation.

From early on the rei vindicatio, derived from the ius civile served for the protection of ownership. It was also the most important remedy an owner could use to protect his ownership. The rei vindicatio was a real right (action in rem, as opposed to a personal right (action in personam), which the owner could institute against anybody who was in possession of his thing², without legal right. This action by the owner against the non-owner who was in possession of the thing, was available to the owner, regardless whether the possession was bona fide or mala fide.

The purpose of the action was twofold:

firstly, to ascertain the plaintiff's ownership, and

secondly, to procure the restitution of the thing to him or - if necessary - the defendant's condemnation in a certain sum of money.

The onus(burden of proof) was on the plaintiff to show he is the owner of the thing. In practise the owner had to prove that he acquired the thing by his an "original" mode or that his predecessor in title had a valid title to the thing.

Justinian³ extended the capacity to be sued to the ficti possessores("fictional possessors"), namely to him who had formerly possessed and then fraudulently parted with possession (dolo malo desiit possidere), to prevent the institution of the rei vindicatio against them, as well as to him who had in fact never possessed but who had accepted the part of the defendant as if he possessed (liti se optulit quasi possideret) perhaps in order to enable the real possessor to acquire ownership by prescription. In this extended form the defendant was to pay a monetary amount (a kind of penalty or fine) to the plaintiff. Kaser⁴ is of the opinion that in its extended form, which directed the recovery of damages, rei vindicatio lost some of its character as an action in rem.

With the rei vindicatio the plaintiff was able to claim delivery of the thing and the causa rei, which in principle would include all the benefits that the plaintiff would have acquired if the thing was handed to him at litis contestatio(joinder of issue). The benefits referred to here would be the proceeds from the thing and any compensation received for damages to the thing⁵.

In regard to the fruits gathered from the thing by the defendant and still in existence (fructus extantes) beforelitis contestatio, could, as far as they belonged to the plaintiff be vindicated together with the parent thing or independently, already in the classical law⁶. Under Justinian the male fidei possessor(possessor in bad faith) was liable for all fruits he had taken (fructus percepti) or should have taken, but for his negligence (culpa). After litis contestatio the bona fide as well as the mala fide possessor were liable for the fruits, consumed or the fruits that remained uncollected⁷.

In classical law there was no room for the condemnation of damages to the thing or the extinction of the thing with the If the thing had been damaged or destroyed before litis contestatio there was in classical law no room for the condemnation of such damages within the framework of the rei vindicatio; the injured party could sue on the lex Aquilia. In the determination of liability under the Justinian law a distinction is made between the mala fide and bona fide possessor. The mala fide possessor was liable for the damages caused through his negligence (culpa), but both the mala fide possessor and the bona fide possessor were liable for the damages caused intentionally (dolus) to the thing after litis contestatio.

The mala fide possessor and the bona fide possessor were entitled to compensation for the necessary or useful expenses (i.e. such as increased the value of the thing) on the thing. This right was derived from the principle that no one should be enriched at the expense of another. All possessors were granted the right to separate and to take away such things, which they had annexed to the vindicated thing (ius tollendi ), provided the taking away was not completely disadvantageous to them. The plaintiff could prevent the ius tollendi by paying compensation.

The action ad exhibendum was a personal action⁸ of the ius civile that was intended to have the effect to produce the thing, mainly as a prerequisite for the rei vindicatio. In other words before the owner could recover the thing by way of the rei vindicatio, which was a real right, he had to ensure that the thing was produced before the praetor.

To understand this one had to understand the rights at stake. I digress somewhat in order to explain the position⁹ : Under Roman law the possessor was not liable to the owner for the restitution of the thing and the owner could not - as the creditor could his debtor in an action in personam - force the possessor to defend the action in rem. If the defendant refused to defend his case, that is, if he did not take part in the joiner of issue, then the rei vindicatio could never be tried. The praetor, however, procured the thing for the plaintiff along other ways: in the case of movables by the (personal) action ad exhibendum, in the case of land by the interdictum quem fundum; and these remedies were given without any examination of the plaintiff's ownership by the judge.

If the defendant failed to defend the action in rem, namely the rei vindicatio, the praetor, without further investigation, ordered the plaintiff to take the thing with him. However, in this way the plaintiff only acquired possession of the thing; the question of ownership remained undetermined. If the defendant failed to produce the thing he was condemned in the same sum of money as if he had been defeated in the intended action, i.e. the rei vindicatio.

The Romans had other remedies to enforce the protection of ownership, namely the actio negatoria, the actio Publiciana and the exceptio rei venditae et traditae. These actions will be discussed at a later stage.

¹ From the 282 rules recorded in Hammurabi's Code of Law the protection of private ownership is listed as number nine.

² Here used in the legal sense, as loosely meaning 'property' (Latin: res).

³ Emperor of the Eastern Roman Empire between 527AD to 565AD. The Corpus Iuris Civilis(Lit: "Body of Civil Law") was compiled upon his instructions.

⁴ op. cit 114

⁵ D.6.1.20: (Gaius(libro septimo ad edictum provinciale)…Nec enim sufficit corpus ipsum restitui, sed opus est, ut et causa rei restituatur, id est ut omne habeat petitor, quod habiturus foret, si eo tempore, quo iudicium accipiebatur, retitutus illi homo fuisset.

⁶ Generally the period in Roman law that extended from 250 BCE to 284 AD.

⁷ Inst. 4.17.2. According C.3.32.22. (Impp. Dicletianus and Maximinianus) : Certum est mala fide possessores omnes fructus solere cum ipsa re praestare, bona fide vero extantes, post litis autem contestationem universos..

⁸ D.10.4.3.3: (Ulpinianus libro vicensimo quarto ad edictum): Est autem personalis haec action…

⁹ The following is mainly from Kaser op.cit at 114.

Bosman, F and Hosten, J: Inleiding tot die Suid-Afrikaanse Reg en Regsleer. Butterworths. Durban, 1979.

Kaser, M: Roman Private Law. Translated from German by Rolf Dannenbring. Second Edition. Butterworths. Durban, 1968.

Van Zyl, DH: Geskiedenis en Beginsels van die Romeinse Privaatreg. Butterworths. Durban, 1977.