As noted in the Introduction to Chapter 3 of the Casebook, Roman law recognized an archaic category of property (res mancipi) that included land in Italy and was subject to special rules of conveyance. Two forms of conveyance were considered valid for this purpose: one was a ritual procedure called mancipatio (Anglicized as “mancipation”), and the other a court proceeding in the form of a collusive lawsuit (in iure cessio “surrender in law”). Because both methods were cumbersome and increasingly impractical, they eventually gave way to conveyance by simple delivery (traditio) with the intent to transfer ownership—i.e., the same method of transferring ownership that applied to movables. This change was made possible by invoking the doctrine of prescription (usucapion). A period of prescription began to run with delivery, and full ownership was achieved when that period had been completed. In order to forestall the possibility of fraud by a transferor after delivery, an affirmative defense of “sale and delivery” was granted to the transferee in any lawsuit that might be brought by the transferor to recover possession of the property.
Case 67. The doctrine of nemo plus iuris (“no one can transfer more legal right than s/he has”) was long ago appropriated by the common law and remains axiomatic today. See, e.g., E. Coke, The First Part of the Institutes of the Laws of England or a Commentary upon Littleton, ed. London, 1832, fo. 309b (II, ch. 10, sec. 551). For an interesting application of the rule in an international context, see: Kunstsammlungen Zu Weimar v. Elicofon 536 F.Supp. 829 D.C.N.Y., 1981:
Case 68. This and the following set of cases concern the issue of whether transfer for a legally valid reason has occurred if the parties do not have the same understanding of what the reason is. Simple delivery of property is not sufficient to effect a transfer of ownership. There must also be a meeting of the minds regarding the reason for the transfer between the owner-transferor and the new owner-transferee. Additionally, that reason must be a legally valid one, such as a sale, gift, or succession.
(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even if a document of title is to be delivered at a different time or place; . . .
Cases 70–71. Because of editing by the compilers it might appear that the first part of Case 71 misstates Julian’s argument as reproduced in the second part of Case 70, but in fact there is no misstatement. The fact-situation is as follows: Smith delivers a sum of money to Jones thinking of it as a gift. Jones accepts the money thinking of it as a loan. As a gift, the transfer would be ineffective. Case 70 goes on to say, however, that the “ownership” (proprietas) will still pass (notwithstanding the ineffectiveness of the gift), but that is because a loan of money transfers ownership along with possession of the money, subject to an obligation to repay the loan. Case 71 questions whether even the loan is effective, and Ulpian concludes that it is not—i.e., that the ownership does not pass (contrary to Julian’s opinion); nevertheless, the money will be treated as if it were a loan by giving to the transferee the affirmative defense of fraud (exceptio doli), should the owner seek recovery of damages (condictio) for what might otherwise be deemed a theft.
At common law “Acceptance by the donee is required for a gift to become complete. Acceptance is presumed, subject to the donee’s right to refuse or disclaim.” Restatement 3rd of Property: Wills & Other Donative Transfers § 6.1 (b) (2003).