Usucapio

Since mancipatio and in iure cessio were inherently public modes of acquisition of ownership, usucapio was the only private method of the ius civile.^[1] Ownership of a thing in Roman law was usually protected forever, until a limit of thirty years was introduced in 426 AD on actions by Theodosius – in other words, preventing the owner of a thing getting it back or seeking damages after thirty years.^[2]

Usacapio was a form of acquisitive prescription – the passage of time entitled the holder to particular rights of acquisition.^[2] This right is a new right, one without reference to any existing rights.^[3]

Usucapio assisted two cases: where a thing had been transferred improperly (for example, transferring a res mancipi by traditio), or where the transferor of a thing did not hold proper title (for example, sale by a non-owner).^[2]

There were five requirements for the acquisition of ownership by usucapio. Firstly, the claimant must have had uninterrupted possession for the required period of time. The claimant must have gained the thing with iusta causa and in good faith (bona fides). The thing claimed must be capable of ownership, and must have at no time been stolen or taken by force.^[2]

The required period of time was only one year for movables and two years for land.^[2] Res universitas, groups of things such as an inheritance which may include both movables and land, also came under the one year rule.^[4] This is widely attributed to the time of the Twelve Tables, including by Cicero.^[1] The requirement of extended possession is believed to have been originally the only requirement, although certain types of things were exempt. These included stolen things, the res mancipi under another's guardianship, and limes – five-foot strips required between adjoining land holdings.^[5] The time period would have formed the prohibitive part in early Rome, where the community was sufficiently small that the owner could easily identify and regain his goods – considering also that if they had been stolen, they could not be usucapted. Usucapio would therefore have been restricted in most cases to informal conveyance of res mancipi.^[5] As Rome grew, however, it became more and more likely that the owner would be away for a year or more. The Praetor extended the rules of possession to new cases, which came to form a central part of usucapio: for example, the case of the inheritor believing that formerly borrowed goods are part of his inheritance.^[6]

Iusta causa (alternatively "iustus titulus") is a requirement, in essence, that the transfer would have been valid if not for one of the two cases mentioned above.^{[clarification needed]} This will be a recognised method of transfer – for example, gift or sale. This has to be in fact; it cannot rest on a mistaken belief in there being a sale or gift, which is the main difference between iusta causa and good faith in practice.^[7] Good faith is not easily defined, despite being a common concept in the Roman law. In the case of sale by a non-owner (or another defect in title), then it probably meant that the claimant believed he was becoming owner. However, the receiver of a res mancipi by traditio must surely realise the problem, but this does not prevent usucapio. The burden of proof was on anyone disputing the usucapio to show bad faith. The bad faith had to be shown at the point of the iusta causa – it was insufficient to show that the claimant later realised that the item had come from a non-owner.^[8]

The claimed must be a res habilis, an object capable of private ownership and not otherwise prohibited.^[4]

Something that had at any point been stolen (furtum) or taken by force could not be usucapted. Furtum was much wider than theft in the modern criminal law (furtum was a civil action), involving most sorts of bad faith interference in another's property.^[9] This had the practical effect of extending the good faith requirement to the transferor as well as the transferee – for someone who sold, gifted or otherwise transferred the property of another in bad faith committed furtum. Indeed, that the transferor is a non-owner in fact means normally that at some point there has been furtum. Gaius, in book two of The Institutes gives two counter-examples: firstly, where a borrower has died, and his heir believes the thing to be part of his inheritance and sells it; secondly, where a man with a usufruct over a slave woman, ignorant of the law, wrongly believes the child to be his and sells it.^[10] Land could not be stolen, but it could certainly be taken by force. In either case (theft or force) it is only if the owner from whom it has been stolen regains it, or considers it lost forever (i.e. abandons it), that a valid usucapio can take place. Given this strict limitation, usucapio must surely only have been about shifting the burden of proof to the claimant from the possessor, whose possession was usually easy to show.^[11] However, it remains a departure from usual Roman ideas of ownership.^[12]