to time-honoured forms after their raison d'être was gone, the
scale-bearer and the scales were still retained as indispensable elements
of the mancipation, yet the scales were simply touched by the
purchaser with a raudusculum or a single coin, in order that he
might be able to recite the old formula: “I say that this slave is
mine in quiritary right, and that by purchase (for such and such a
price) with these scales and this bit of copper.” And that one
coin, says Gaius, was then handed by the transferee to the transferrer
as if it were in fact the price of the purchase (quasi pretii
loco). Thus transformed, the emancipation was undoubtedly an
imaginary sale; for the real price might have been paid weeks
or months before, or might not be paid until weeks or months
afterwards. The emancipation had become nothing more than a
conveyance, and in this form it continued down to the end of the
3rd century of the Empire to be the appropriate mode of transfer
of a res mancipi, or at least of conferring on the transferee of such
a thing a complete legal title (dominium ex jure quiritium). After
that, however, it seems gradually to have gone into disuse, being
inapplicable to lands out of Italy that did not enjoy what was
called jus Italicum; and long before the time of Justinian it had
practically disappeared.
The effects of a mancipation, provided the price had been paid or security given for it, were that the property passed instantly to the purchaser, and that the transferrer was held to warrant the transferee against eviction from the moment the price was received. In the absence of either payment or sureties for it, the title still remained with the vendor, so that it was in his power, by means of a real action, to get back what had been mancipated, even though it had passed into the possession of the vendee. The vendor's liability to the vendee in the event of eviction is usually supposed to have arisen ipso jure—that is to say, without anything expressly said about it; the acceptance by the transferrer of the coin with which the scales had been struck was held to have imposed upon him an obligation to maintain the transferee in possession, under a penalty of double the amount of the price, recoverable by the latter by what is usually called an actio auctoritatis. But this ipso jure obligation did not arise when the mancipation was either really or fictitiously gratuitous (nummo uno),—really, in the case of donations, &c., fictitiously, when, on purpose to exclude the warranty, the recital of the transferee was that the price was a single sesterce.
The right of a vendee to sue an actio auctoritatis arose only when eviction resulted from a decree in a regular judicial process at the instance of a third party disputing his title, and was conditional on his having done all that was necessary on his part to bring his vendor (auctor) into the field to defend his own interests. And the duration of the auctoritas was limited by the Tables to two years in the case of lands and houses, to one year in the case of other things. As possession for those periods was sufficient to cure any defect in the vendee's title, it was but reasonable that with their expiry the vendor's liability on his warranty should be at an end.
By a provision of the Tables in the very inclusive terms, “cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto,” the importance of mancipation was immensely increased; for any sort of qualification germane to the transaction might be superinduced upon it, and the range of its application thus greatly extended. Such qualifications were spoken of as leges mancipii,—self-imposed terms, conditions or qualifications of the conveyance and, as integral parts of the transaction per aes et libram, they partook of its binding character and were law between the parties. The matter of oral declaration might be the acreage of lands, their freedom from burdens or right to easements, reservation of a usufruct, undertaking to reconvey on a certain event, or what not, so long as it did not express a term or condition; the result was just so many obligations created per aes et libram, whose contravention or denial (Cicero tells us) was punished with a twofold penalty.[1] Ordinarily the words spoken in the hearing of the witnesses fixed the beginning and the end of the liability; it was enough that they were literally complied with, however much the other party might be injured by something inconsistent with their spirit, or which he had not taken the precaution to require should be made matter of declaration. But there was an exception (although not introduced until long after the Tables) in the case of that particular mancipatory agreement which was known by the name of fiducia, i.e. where the mancipation was to a creditor in security or to a friend for safe custody, and the engagement was to return the thing mancipated, in the one case when the debt secured by it was paid and in the other on demand. In such cases the transferee took the conveyance more in the transferrer's interest than his own; he became a sort of trustee, entitled to be treated with consideration, and neither mulcted in a twofold penalty when his inability to reconvey was due to no fault of his, nor forced to reconvey until relieved of charges incurred by him in reference to the property. Accordingly it became the practice to import into the mancipation a reference to fides—“fidi fiduciae causa meum esse aio,” with explanation of the purpose, conditions, &c., of the fiducia, and this explanation as a rule not in the nuncupatory words, forming a relative lex mancipii, but in a separate agreement or pactum fiduciae. This pact then became enforceable not by ordinary legis actio, as part of the mancipation, but separately on grounds of good faith alone. It gave rise to an actio fiduciae which some writers think was just an application of the legis actio per judicis postulationem, but which more probably was originally an action in factum granted by the urban praetor by virtue of his imperium. In any case it was one of the earliest instances of an action inter cives based on principles of good faith. The fiduciary clause had the effect of freeing alike the right of the vendor and the obligation of the vendee from the hard-and-fast lines of the jus strictum, and subordinating them to the principles of bona fides.[2]
Of the civil modes of acquiring property on singular title applicable to both res mancipi and res nec mancipi surrender in court Surrender in court. (in jure cessio) was just a rei vindicatio arrested in its initial stage. The parties, cedent and cessionary, having previously arranged the terms of transfer—sale, donation or otherwise—appeared before the magistrate; the cessionary, taking the position of plaintiff, declared the thing his in quiritary right; the cedent, as defendant, was asked what he had to say in answer; and, on his admission or silence, the magistrate at once pronounced a decree (addictio) which completed the transfer, but which might be subject to a fiduciary reservation or deduction of a servitude. It was probably more resorted to for the constitution of servitudes, both real and personal, and transfer of such rights as patria potestas, tutory-at-law of a woman, or an agnatic inheritance that had already opened, than for conveyance of property. For it was not only inconvenient, inasmuch as it required the parties to appear before the supreme magistrate in Rome, and could not be carried through by any one under power (as mancipation might), but it had also the serious disadvantage that it did not ipso jure imply any warranty of title by the cedent in the event of eviction or give rise to an action de modo agri. Nor did it, like mancipation and tradition, make payment of the price a condition precedent of the transfer of property. The reason was that in form the right of the cessionary flowed from the magisterial decree: “Since you say the thing is yours, and the cedent does not say it is his, I declare it yours,” and not from any act or word of the cedent's, who was passive in the matter.
Usucapion,[3] regulated by the XII. Tables, but not improbably recognized previously in a vague and uncertain way, converted Usucapion. uninterrupted possession (usus) into quiritary property by efflux of time. The provision in the Tables, as given by Cicero, was to this effect: “usus auctoritas fundi biennium est, ceterarum rerum omnium annuus est.” The relation in which the words usus and auctoritas stand to each other has been a subject of much discussion: the prevailing opinion amongst modern civilians is that the two words should be taken disjunctively, the first alone referring to usucapion, and the second to the warranty of title incumbent on the vendor in a mancipation, and that both were limited to two years in the case of lands (and, by extensive interpretation, houses), and to one year in the case of anything else. In the later jurisprudence the possession required to be based on a sufficient title and the possessor to be in good faith. But the decemviral code, as is now generally admitted, contained no such requirements; any citizen occupying immovable or holding movables as his own, provided they were usucaptible and he had not taken them theftuously, acquired a quiritary right in two years or one, as the case might be, simply on the strength of his possession. Originally, therefore, it was simply the conversion of de facto possession, no matter how acquired so long as not by theft, into legal ownership when prolonged for the statutory period,—too often the maintenance of might at the cost of right. But in time it came to be regarded rather as a remedy for some defect of title, arising either from irregularity of conveyance or incapacity of the party from whom a transfer had been taken; and with the progress of
- ↑ Cic. de Off. iii. 16, § 65. Some writers, e.g. Girard, Manuel de droit romain, p. 550, n. 5, take the view that, apart from the actio auctoritatis, it was only where the extent of the land was misstated (actio de modo agri) that the penalty of a duplum was ipso jure incurred. But this puts a gloss on Cicero's language.
- ↑ There is much diversity of opinion about fiducia. See Oertmann, Fiducia im röm. Privatrecht (Berlin, 1890); Girard, Manuel, 4th ed. pp. 519-23; Sohm, Institutionen (Eng. trans., 2nd ed.), pp. 63-65.
- ↑ Literature: Stintzing, Das Wesen von bona fides und titulus in d. röm. Usucapionslehre (Heidelberg, 1852); Schirmer, Die Grundidee d. Usucapion im röm. Recht (Berlin, 1855); Pernice, Labeo, 2nd ed. ii. 328 seq.; Voigt, XII. Tafeln, ii. § 91; Karlowa, Röm. R.G. ii. 387 seq.; Esmein, “Sur l'histoire de l'usucapion,” Mélanges (1886), pp. 171 seq.
