Original scientific paper
Acquisition of estate through persons in power in Roman law
Mirela Šarac
; Faculty of law, University of Split, Split, Croatia
Irena Stanić
; Faculty of law, University of Sarajevo, Sarajevo, Bosnia and Herzegovina
Abstract
The acquisition of possession through third persons in Roman science is still a controversial issue and an open question. The purpose of this work is to analyze the problem of acquisition of possession through subjugated persons, primarily the acquisition of possession per servum aut filium and to explain in which way such acquisition was allowed in the legal system which did not use direct agency. Opinion among Roman lawers differs and ranges from an affirmative position in this matter, through total denial and the questioning of the possibility of acquiring possession through subjugated persons, to the imposition of certain limits to such acquisitions. Roman lawyers believed that the most important reason for allowing acquisition of possession through subjugated persons was the fact that the possession basically represented factual power over objects, although there were also certain legal elements involved.The first part of the work analyzes certain assumptions and basic principles developed by classical law regarding acquisition of possession by subjugated persons, and answers the question on what grounds the acquisition of possession on the part of subjugated persons was ascribed to their power holder. The second part considers specific cases: homo liber bona fide serviens; the captives inability to have possessions (captivus), ius postliminii i possessio; acquiring possession through fugitive slave (servus fugitivus), common slave (servus communis) and a slave who is the subject of usufruct (servus usuarius); the recovery of stolen goods; the acquisition of possession for hereditas iacens;the acquisition of possession for municipium and also for guardians and furiosus. Unlike classical rights according to Justinian's law the possessor is the person who is absent for reasons of the state, and also the person who has been taken captive by the enemy. During their absence these persons might have acquired ownership in Rome through usucapion.
Keywords
Roman law; possession; acquisition of possession; persons in power
Hrčak ID:
48829
URI
Publication date:
22.2.2010.
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