Examining the ‘objects of property rights’ - lessons from the Roman, Germanic and Dutch legal history

• Author: Mzukisi Njotini
• Published date: 01 July 2017
• Record Number: dejure_v50_n1_a9
• DOI: 10.10520/EJC-8db193e2c
• Pages: 136-155
• Date: 01 July 2017

136 2017 De Jure

Examining the ‘objects of property rights’ –

lessons from the Roman, Germanic and

Dutch legal history

Mzukisi Njotini*

LLM LLD

Senior Lecturer, School of Law, College of Law, Unisa

OPSOMMING

Ondersoek ’n ondersoek na die “voorwerpe van eiendomsreg” – lesse uit die

Romeinse, Germaanse en Nederlands regsgeskiedenis

Hierdie artikel ondersoek die geskiedenis van eiendomsreg, of, dalk beter

gestel, eiendom as ‘n voorwerp vir sekere regte. Die vraag word gevra of

eiendomsreg slegs van toepassing is op tasbare voorwerpe, en of dit die

gemeenskap is wat bepaal wat eiendom, en die reg daaromtrent, is. Die

motivering vir die ondersoek is die ontstaan van `n informasie- en

kennisgedrewe samelewing. Kennis word gedeel en uitgeruil – maar is dit

eiendom? Die evolusie van regte ten opsigte van eiendom in die Romeinse,

Germaanse en Nederlandse regsgeskiedenis word ondersoek.

1Introduction

Property or the objects that are or should be accorded the status of

property for legal purposes seem to depend on the social circumstances

of a specific society during a particular point in time. This is the position

because property seems to amount to those things that a particular

society during a particular period in time regards as of interest to it.

Sometimes, it is even stated that the starting point is that all objects of

property must or should be corporeal or tangible.1 In other words, rights

in property vest or ought to vest in those things that have a tangible

existence. Tomkins and Jencken provide that rights in property exist in a

subjective sense.2 In this sense, these rights refer to ‘the power or

dominion which a person is entitled to exercise over an object, in which

exercise there is involved the freedom of the will’.3

1 This contribution is based on a research done for the author’s LLD thesis,

entitled “E-Crimes and E Authentication – A Legal Perspective” for which

the author is registered for at the University of South Africa (UNISA).

1 See CG van der Merwe Sakereg (2ed 1989) 24-25, PJ Badenhorst,

JM Pienaar & H Mostert Silberberg & Schoeman’s The law of property (5 ed

2006) 14-19.

2 Tomkins & Jencken A compendium of the modern Roman law founded upon

the treatises of Puchta, Von Vangerow, Arndts, Franz Moehler, and the Copus

Juris Civilis (1870) 40.

3Ibid.

How to cite: Njotini ‘Examining the ‘objects of property rights’ – lessons from the Roman, Germanic and Dutch

legal history ’ 2017 De Jure 136-155

http://dx.doi.org/10.17159/2225-7160/2017/v50n1a8

*

Examining the ‘objects of property rights’ 137

Given the importance of rights in determining whether an object is

property in law, this article is limited to the study of property as a right

or property as an object of rights. Thus, the meaning and nature of the

legal entitlement which a person has or is deemed to have over or in

respect of his or her object are discussed. The latter investigation looks

at whether the meaning and nature of the rights in property depend on

the necessities of a particular society.

The scrutiny above is motivated by the emergence of a new society,

that is, an information or knowledge society. According to Soete, this is

a society where high volumes of information are shared, exchanged and

disseminated.4 Specifically, information is one of the essential assets for

the existence of an information society. In order to study the objects of

rights within the latter society, the historical developments of property as

a right are examined in this article. This investigation focuses on the

evolution of the rights in property in Roman, Germanic and Dutch legal

jurisprudence.

2Roman Law

2 1 Old Roman Law (250 BC)

Principally, old Roman law recognised that a relationship exists between

a person and a thing or res.5 In view of this, the law of things was dealt

with as the progression from the law of persons. Specifically, Table IV.V

of the Law of the Twelve Tables (the Twelve Tables) regarded property as

that which could be acquired by Roman citizens. Roman citizens had

several actions against those who interfered with their property. The

most notable actions were the actio in rem and actio in personam.6 The

actio in rem protected a person’s use and enjoyment of his corporeal and

physical res, and the actio in personam was a claim which a person had

that others should acknowledge that the property is subject to his use and

enjoyment.7

The Twelve Tables did not particularly differentiate between things as

such. It was only required that a thing must be capable of being touched,

that is, the so-called quae tangi possunt requirement. Van Warmelo

supports the view regarding the tangibility of a res.8 He states that ‘in an

early and unsophisticated community, the interests of the person were

4 See Soete Building the European information society for us all: final policy

report of the high level expert group (1997) 11.

5 Maine Ancient law: its connection with the early history of society and its

relation to modern ideas (1897) 258-259.

6 Nasmith Outline of Roman history from Romulus to Justinian (including

translation of the Twelve Tables, the Institutes of Gaius, and the Institutes of

Justinian), with special reference to the growth, development and decay of

Roman jurisprudence (2006) 327-328.

7 Mousourakis Fundamentals of Roman private law (2012) 312.

8 Van Warmelo An introduction to the principles of Roman civil law (1976) 63.