Res incorporalis and the debate about the materiality of the object of property in the light of
Roman-law tradition
Wojciech Dajczak
Adam Mickiewicz University, Poznań
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The object of property – a hard question
•„Most persons familiar with philospohical treaties on property are never faced with the task of
thinking about why some things are objects of property and others are not. Typically, phisosophical
works purporting to concern property start with a kind of justibiable evasion of this task”.
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The object of property – a hard question
•
•„Possibly in no area of the law does one find more diveristy among legal systems than in the
domain that we may call <the object of property>”
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The object of property – a hard question
•
•Flemming v. Nestor 363 US (603) 1960)
•Is the termination of benefits from the Social Seciurity program the case of a deprivation of
property?
•
•„The New Property”
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The object of property – a hard question
The New Property
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The object of property – a hard question
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The object of property – a hard question
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Division into tangible and intangible things in Roman legal sources
•
•res corporales and res incorporales
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Roman law and the materiality of the object of property
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Fundamental questions
•
•
•- how important was the theoretical distinction of the materiality quality in the ancient Roman
law for the idea of property ?
•
•- what  were the basic results of the division into res corporales and incorporales in the ius
commune for the forming of fundamental notions  of property law as bien in France or Sache in
Germany and for development  of dogmatic ideas of what may constitute the object of property ?
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The meaning of division into res corporales and incorporales in the ancient Roman law
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•A. Seneca (Epist. 58,11)
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»Corporalis
•Quod est
»Incorporalis
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The meaning of division into res corporales and incorporales in the ancient Roman law
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•G. 1,12 – 14
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• Estate
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•       res corporales
•
• res incorporales
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The meaning of division into res corporales and incorporales in the ancient Roman law
•Pomponius , libro 30 Ad Sabinum (D.41,3,30pr.)
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•Corpus as the object of property
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•- uno spiritu
•- quod ex contingentibus
•- quod ex distantibus constat
•
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The issue of relation between res corporales and incorporales
glosa 061.jpg
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The issue of relation between res corporales and incorporales – oppostion model
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The issue of relation between res corporales and incorporales  - coordination model
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The issue of relation between res corporales and incorporales  - coordination model
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A precise definition of the object of property
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The Roman division into res corporales and incorporales and the criticism of a strict limitation of
property to material objects
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The Roman law tradition as an inspiraton for a discussion on the boundaries of the object of
property
•
•
Scientific tradition of understanding the division into res corporales and res incorporales
Opposition model
Coordination model
Issues important for the definition of the object of property
with were grasped in the centuries –long discussion of Gaius’division
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The Roman law tradition as an inspiraton for a discussion on the boundaries of the object of
property
•
•Vital issues important for the definition of the object of property which were grasped in the
centuries-long discussion of division into res corporales and incorporales:
•
•- question of the uniform approach to res incorporales (H. Donellus);
•- dynamic  character the notion of thing (M. Planiol)
•- erroneus application of the division into res corporales and res incorporales in the
pandectistic debate dedicated tto he system of private law
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The Roman law tradition as an inspiraton for a discussion on the boundaries of the object of
property
•
•The historic and comparative reflection on the division into res corporales and res incorporales
inspires to hypothesise that also non – material objects should be regarded as the object of legal
power, i.e. object of property
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The Roman law tradition as an inspiraton for a discussion on the boundaries of the object of
property
•
When non-material object may be regarded as object of legal power, i.e. object od property
The dicussion of the „new property”
Inspiration from the civilian tradition
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The Roman law tradition as an inspiraton for a discussion on the boundaries of the object of
property
•D.41,3,30,pr. (Pomponius, libro 30 ad Sabinum)
•
• Rereum mixtura facta an usucapionem cuiusque praecedentem quaeritur. Tria autem genra sunt
corporum; quod continetur uno spiritu (…)ut homo,tignum, lapis (…), alterum, quod ex
contingentibus, hoc est pluribus inter se cohaerentibus constat, (…); ut aedificium, navis (…)
tertium, quod ex distantibus constat, ut corpora plura non soluta, sed uni nomini subiecta veluti
populus, legio, grex (…).
•
•D.41,3,30pr. – 1. Pomponius, On Sabinus, Book XXX. •It is asked whether a mixture of different
things interrupts the usucaption which has begun to run with reference to each of them. There are
three kinds of things which can be divided; first, those which are included in a substance of the
same nature,(…), as a slave, a piece of timber, a stone, and other property of this kind. Second,
things which are joined by contact, that is to say, which have coherence, and are connected, as a
house, a ship, a cupboard. Third, such as are formed of distinct objects, as different bodies which
are not united but are included under a single appellation, for instance, a people, a legion, a
flock. (…)
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The Roman law tradition as an inspiraton for a discussion on the boundaries of the object of
property
•D.41,3,30,pr. – 1 (Pomponius, libro 30 ad Sabinum) • Rereum mixtura facta an usucapionem cuiusque
praecedentem quaeritur. Tria autem genra sunt corporum; quod continetur uno spiritu (…)ut
homo,tignum, lapis (…), alterum, quod ex contingentibus, hoc est pluribus inter se cohaerentibus
constat, (…); ut aedificium, navis (…) tertium, quod ex distantibus constat, ut corpora plura non
soluta, sed uni nomini subiecta veluti populus, legio, grex (…).
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•- the object may be individualised
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•- its individualisation can be put to practical use;
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•- its individualisation is in acordance with the law and good customs.
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The end
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