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B. Usucapio: Cases 72–93

Chapter 3: Acquiring Ownership and Losing Ownership

Various requirements had to be met in order for usucapion to operate. First, the “Atinian Law” (lex Atinia), blocked usucapion of stolen property that had not been returned to the actual control (potestas) of the true owner (Cases 72–79).  Second, the usucapting possessor had to have acquired possession in good faith and under color of title (Cases 80–89), called “putative title” in the Casebook.  Third, the possession had to be continuous during the entire limitations period.  Initially, under the XII Tables, the limitations period was one year for movables and two years for land, which in that early period would necessarily have been land in the immediate vicinity of the city of Rome.  Later a distinction was made between the limitations period for land in Italy and land outside of Italy, with a significantly longer period required for prescriptive acquisition the latter.  By Justinian’s time all land was treated the same, and the limitations period was 10 years for land where both owner and adverse possessor were “present” in the locale, and 20 years otherwise.  The limitations period for movables had been lengthened to three years.  A common limitations period for adverse possession of land in the various States of the United States is 20 years.

a. Reversio in potestatem (interpretation of the lex Atinia)
Case 72–79

b. Bona fides
Case 80–83
Cases 84–86

c. Putative Title
Cases 87–93


Cases 72–79. The lex Atinia is a statute that establishes an exception to the rules otherwise applicable to usucapion of movables.

Discussion Question:
  1. Would the lex Atinia have led to a different outcome in O’Keefe v. Snyder 416 A.2d (1980) 862?

    “Georgia O’Keeffe . . .  alleged she was the owner of [three] paintings [in the possession of Snyder] and that they were stolen from a New York art gallery in 1946. Snyder asserted he was a purchaser for value of the paintings, he had title by adverse possession, and O’Keeffe’s action was barred by the expiration of the six-year period of limitations . . .  pertaining to an action in replevin. Snyder impleaded third party defendant, Ulrich A. Frank, from whom Snyder purchased the paintings in 1975 for $35,000. . . . O’Keeffe does not contend that Frank or Snyder had actual knowledge of the alleged theft. . . .

    O’Keeffe contended the paintings were stolen in 1946 from a gallery, An American Place. The gallery was operated by her late husband, the famous photographer Alfred Stieglitz.  . . . Frank traces his possession of the paintings to his father, Dr. Frank, who died in 1968. He claims there is a family relationship by marriage between his family and the Stieglitz family, a contention that O’Keeffe disputes. Frank does not know how his father acquired the paintings, but he recalls seeing them in his father’s apartment in New Hampshire as early as 1941–1943, a period that precedes the alleged theft. Consequently, Frank’s factual contentions are inconsistent with O’Keeffe’s allegation of theft. Until 1965, Dr. Frank occasionally lent the paintings to Ulrich Frank. In 1965, Dr. and Mrs. Frank formally gave the paintings to Ulrich Frank, who kept them in his residences in Yardley, Pennsylvania, and Princeton, New Jersey. In 1968, he exhibited anonymously [two of the paintings] in a one day art show in the Jewish Community Center in Trenton. All of these events precede O’Keeffe’s listing of the paintings as stolen with the Art Dealers Association of America, Inc. in 1972.

    . . . Under the discovery rule, the statute of limitations on an action for replevin begins to run when the owner knows or reasonably should know of his cause of action and the identity of the possessor of the chattel. Subsequent transfers of the chattel are part of the continuous dispossession of the chattel from the original owner. The important point is not that there has been a substitution of possessors, but that there has been a continuous dispossession of the former owner. . . . We reverse the judgment of the Appellate Division in favor of O’Keeffe and remand the matter for trial in accordance with this opinion.”

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Case 80–83. The Roman doctrine of bona fides initially came into the common law through the medieval law merchant.2  Modern codifications of commercial law retain the centrality of the concept: e.g., UCC § 1–304 (2011): “Every contract or duty within [the Uniform Commercial Code] imposes an obligation of good faith in its performance and enforcement.”  But what is “good faith?” UCC § 1–201 (2011) (20) defines it as: “. . . except as otherwise provided in Article 5, [good faith] means honesty in fact and the observance of reasonable commercial standards of fair dealing.”  Contrast this with the definition in Article 5 (which deals with Letters of Credit):  UCC § 5–102 (7) (2011): “‘Good faith’” means honesty in fact in the conduct or transaction concerned.”

Apart from the influence of the law merchant in commercial contexts, the concept of “good faith” spread more widely within the common law tradition through courts of equity:

The jurisdiction of chancery was originally rested upon two fundamental notions, equity and conscience, or good faith. The first of these embraced all cases where a party, acting according to the rules of the  law, and not doing anything contrary to conscience or good  faith, might obtain an undue advantage over another, which, though strictly legal, equity would not permit him  to retain. The second . . . embraced all those cases where a party, although perhaps still keeping within the limits of the strict law, so as to be sustained by the law courts, had committed some unconscientious act or breach of good faith, and had thereby obtained an undue advantage over another, which advantage, even though legal,  equity would not suffer him to retain. The relief given by equity in all cases of fraud is plainly referable to this second head of the original jurisdiction. Every fraud, in its most general and fundamental conception, consists in  obtaining an undue advantage by means of some act or omission which is unconscientious or a violation of good faith in the broad meaning given to the term by equity, the bona fides of the Roman law” (emphasis added). John Norton Pomeroy, A Treatise on Equity Jurisprudence as Administered in the United States of America—Adapted for All the States and to the Union of Legal and Equitable Remedies under the Reformed Procedure (Spencer W. Symons, ed. 5th ed.) (1941) at 417.

Notwithstanding the merger of law and equity, the doctrine of “good faith” still stands in some tension with the common law principle of “freedom of contract,” and indeed this tension is one of the more significant differences between the civil and common law traditions.  See, e.g., Roy Goode, “The Concept of Good Faith in English Law,” Centro di studi e ricerche di diritto comparato e straniero, directed by M. J. Bonnell, Saggi, Conferenze e Seminari 2, Rome, 1992.

Discussion Questions:
  1. What is the practical difference between the UCC’s two definitions of “good faith?”

  2. How does the equitable definition of good faith differ in reach and effect from the commercial definitions?

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Cases 84–86. The common law tradition too, or more specifically equity jurisdiction within that tradition, distinguishes between the legal consequences of mistakes of law as opposed to mistakes of fact. “The general rule is that ignorance or mistake of law with full knowledge of the facts, or where the party complaining had within his or her reach the means of determining the true state of things, is not grounds for equitable relief. . . .  Courts have had great difficulty, however, with the general rule that equity does not relieve from mistakes of law, and it is not clear whether the modern trend of judicial opinion is toward liberalizing the general rule. . . . The adjudicated cases are so conflicting and the facts involved so diverse that no uniform rule can be deduced from them, and courts which have not taken a position on the question may grant relief involving mistakes of law if it seems equitable to do so.” 27A Am. Jur. 2d Equity § 13 (2010) (footnotes omitted). 

For one example of how the distinction between a mistake of law and a mistake of fact is dealt with in equity, see Stone v. Stone, 319 Mich. 194, 29 N.W.2d (1947) 271, where “a father wished to set aside a gift to his children. The father had given shares in his family partnership to two minor children in the mistaken belief that income tax could be minimized because the children’s income could be reported on their separate tax returns. After the transfer was made, the superior court held that in such cases income had to be reported on the tax return of the partner who managed and controlled the business. As a result, the commissioner’s ruling in the father’s case was that he had to pay more income tax than he would have if he had not made the gift. The court stated that the general rule is that a court of equity will not set aside a gift because of a mistake of law. However, here there was a mutuality of mistake between the donors and donees, not as to the legal effect of the instruments which created the gifts or as to the rights of any of the parties under the terms of the instrument, but rather as to the antecedent and existing legal rights and duties of the parties. Under such circumstances equitable relief was held to be properly invoked.” Restatement 2d of Property, Donative Transfers § 34.7 (1992).

Discussion Question:
  1. Is the court’s decision in Stone consistent with the Roman rule regarding mistakes of law?

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Cases 87–93. The doctrines of good faith, iusta causa, and error of law all come together in establishing putative title.  At common law, jurisdictions differ as to whether an adverse possessor must be acting under “color of title,” or merely a good faith “claim of title,” or any shadow of title at all. The general tendency has been toward dispensing with the good faith requirement, provided the other elements of adverse possession are satisfied (open, notorious, continuous, etc.).   See, e.g., Stoebuck, Adverse Possession in Washington, 35 Wash.L.Rev. 53, 80 (1960):

“Perhaps the reader will agree that the law would have been clearer and in the long run more useful to the people if [the State of] Washington had never gone into the “subjective intent” business at all. . . . [T]he common law of England seems to have . . . had no such element [of good faith claim of title] to adverse possession. Adverse possession revolves around the character of possession, and it is difficult to see why a man’s secret thoughts should have anything to do with it. Maybe the idea originated in a confusion of permission or agreement between owner and possessor with unilateral intent in the possessor’s mind. Whatever the reason, the court could yet perform a service by doing away with any requirement of subjective intent, negative or affirmative. Since a man cannot by thoughts alone put himself in adverse possession, why should he be able to think himself out of it?“  Quoted with approval in ITT Rayonier, Inc. v. Bell 112 Wash.2d 754, 761 P.2d (1989) 6.

Discussion Question:

  1. Where does the Roman doctrine of putative title fall within the spectrum of fact situations encompassed by “color of title” at one end and no requirement as to subjective intent at the other?

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2 Simon Whittaker and Reinhardt Zimmerman. “Good Faith in European Contract Law: Surveying the Legal Landscape,” in Good Faith in European Contract Law, Simon Whittaker and Reinhardt Zimmerman eds., Cambridge: Cambridge University Press, 2000, 16–18.


Chapter 3: Introduction | A. Cases 67–71 | B. Cases 72–93
C. Cases 94–96 | D. Cases 97–98 | E. Cases 99–101
F. Cases 102–104 | G. Cases 105–119 | H. Case 120


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