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Chapter 4: Protection and Limitations of Ownership

This chapter of the Casebook concerns the legal remedies in Roman law that are available to an owner who

  1. seeks to recover possession of his property; or
  2. seeks to recover damages for another’s harm to or destruction of the owner’s property; or
  3. seeks to take or recover possession of property which, although not technically “owned,” will nevertheless come to be rightfully owned after the expiration of the requisite limitations period; or
  4. seeks to enjoin a neighbor from interfering with the owner’s use and enjoyment of his property; or
  5. seeks restitution of property to its former condition after harm has been caused by another.

At common law, analogous remedies are available in all of these circumstances.  Some of the remedies lie in tort and others are available in equity.  Only a few are considered possessory actions that relate to property as such. 

From the revival of Roman law on the continent the medieval common law borrowed the terminological distinction between actions in rem and actions in personam, but the distinction and the terms have never had precisely the same meaning in both traditions.  The Roman action called vindicatio or rei vindicatio (“vindicatio of property”) is the action through which an owner who is out of possession sues to recover possession of his property.  It is used both for movable and immovable property.  The defendant in a vindicatio is the current possessor (or someone who holds for the possessor).  If the defendant’s possession is lawful (i.e., with iusta causa), then the defendant has an affirmative defense to the action based on the nature of that causa.  As shown by the formula at the head of this chapter of the Casebook, if the defendant loses the action and refuses to restore the property, then he will be assessed the value of the property in dispute.  The most closely analogous action in older common law procedure is a suit in “ejectment” (with reference to land) or “replevin” (with reference to chattel).  Like the vindicatio, a successful action in ejectment awards possession of the property to the plaintiff. Whereas only an owner can bring a vindicatio, the plaintiff in ejectment (or replevin) can be anyone with a superior right to possession.  Other actions at common law that might be used in circumstances where the Roman vindicatio is employed are the action for “detinue” or “unlawful detainer,” both of which seek recovery of property (real or personal) as well as damages.  These are therefore considered to be “mixed” actions (both in rem and in personam).  Typically they would lie when a lessee failed to surrender the property after termination of the leasehold, or a bailee fails to return chattel to the bailor.  Under modern codes of civil procedure, these ancient terminological distinctions no longer have great importance,1 yet they continue to be used despite their obsolescence.  Additionally, the common law actions for recovery of property are themselves now largely superseded by statutory remedies that provide summary process for the “eviction” (another term borrowed from Roman law) of wrongful possessors.

The Roman condictio is a generic term for any in personam lawsuit that seeks the recovery of monetary damages from the defendant.  Typically such suits arise under the Roman law of “obligations,” a term that includes liability based on either contract or “delict” (essentially what the common law calls “tort”).  Properly speaking the condictio is not a remedy relating to property rights as such, even if damage to or loss of property is often the reason for bringing the suit, and the value of the property at issue (or its loss in value) is the baseline measure of damages to be sought. Personal actions for damages at common law arise from a variety of acts that are recognized as wrongful.  With particular reference to land are the common law torts of “trespass” and “nuisance.”  The common law tort of “conversion” is generally analogous to the Roman delict of furtum or “theft.” Both give rise to in personam actions brought by an owner to recover damages for the misappropriation of the owner’s chattel or movable property.  In modern usage, common law conversion also lies where there has been any wrongful interference with the owner’s right of dominion or control of the property.  The associated action is technically called “trover.”

A third type of remedy for invasions of property rights, available in both Roman law and under the equity jurisdiction of the common law, is injunctive relief. At Roman law this takes the form of one of the recognized “interdicts,” including especially the interdict quod vi aut clam and the interdict uti possidetis, both of which are discussed in this chapter of the Casebook. In both the Roman and common law traditions, injunctive relief is in personam and prohibits or compels action on the part of the defendant, but does not impose monetary damages as such.  Equitable remedies in the common law tradition are crafted so as to address the specific factual circumstances.  In generic terms they include decrees that compel “restitution” of property to its former condition, “specific performance” of an obligation that has been undertaken,  “estoppel” of certain pleas and defenses at law, and prohibition of wrongful conduct. 

Further reading on the origin and development of common law remedies regarding property:

Milsom, S.F.C. Historical Foundations of the Common Law, 2nd ed. London: Butterworths, 1981, 119–165.

1 E.g., Rule 2 of the Federal Rules of Civil Procedure provides: “There is one form of action–the civil action”; cf. Comment 2 of the Advisory Committee Notes regarding Rule 2:  “Reference to actions at law or suits in equity in all statutes should now be treated as referring to the civil action prescribed in these rules.” 4 Fed. Prac. & Proc. Civ. CIV Rule 2 (3d ed.) (2010).

Chapter 4: Introduction | A. Cases 121–129 | B. Cases 130–133
C. Cases 134–135 | D. Cases 136–141

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