Set out and explain, using one or more examples, the advantages and disadvantages of using interdicts for the acquisition, maintenance, and protection of possession.

Set out and explain, using one or more examples, the advantages and
disadvantages of using interdicts for the acquisition, maintenance, and
protection of possession.
The key topics for discussion here are:
(1) The concepts of ownership and possession in Roman law.
Often in a dispute over property the Romans would first have an interdictal hearing
(to determine possession), followed by a vindicatio (to determine ownership). To be
granted most of the possessory interdicts a party must demonstrate both a physical
taking or control over the thing (corpus) and the intent to possess in the manner of
an owner (animus). There are some interdicts which will grant possession to a party
who doesn’t currently have physical control but once did (for example, the unde vi,
which grants possession to a party who has been forcibly ejected from a piece of
property).
To prove ownership, a party must prove that they are a citizen (or hold
commercium), that the thing in question is amenable to private ownership and that
they acquired the thing through a legally recognised act. The effect of a possessory
interdict on the vindicatio is to shift the burden of proof. If A succeeds in an interdictal
proceeding against B and is granted possession, it is B who will need to prove they
meet the requirements of ownership in the vindicatio.
(2) The Praetorian interdict.
The interdict is a product of the ius honorarium, or the law which developed from
Praetorian innovation rather than from the statutes and customs of the Roman
people. Interdicts therefore rely on Praetorian authority alone. Some interdicts are
final, but in the context of possession we are concerned primarily with provisional
interdicts, intended to clear the ground for a later hearing. The usual effect of a
possessory interdict is to forbid the parties from taking a specified action until rights
of ownership can be clarified later. Interdicts are personal, which means they attach
to the parties, not the property.
(3) Analysis: Why interdicts?
You might wish to explore why the Praetors saw fit to introduce possessory
interdicts. What benefits did this bring over the actions previously available to them?
This ties into broader issues around the so-called equitable jurisdiction of the Praetor
and their role in aiding the flexibility and social responsiveness of law. Remember
you need to discuss the role of Praetorian interdicts in the acquisition, maintenance,
and protection of possession.
(3) Evaluation/Insight: Why protect possession?
Possession is a remarkable institution in that it represents an inroad on the (usually
formidable) rights of the dominus, or owner. Even a thief in certain circumstances
can have their possession protected by interdict. This gives rise to one of the most
famous questions in Roman legal scholarship: why protect possession at all? In this
context you could bring in the famous debate between the 19th century German
scholars Savigny and Jhering, as well as the consequences of the prevailing
uncertainty over ownership rights in land that must exist in any society without a land
register.
I outline below some secondary reading which you may find useful for the forensic
essay:
(1) du Plessis, Borkowski’s Textbook on Roman Law, 5th edition, pp. 79, 174-180
Law Library, Reserve, KJA147 Ple.
Full text on DiscoverEd
– Basic coverage of all the major issues relating to interdicts in general as well as
possessory interdicts. Page numbers may be different if you have an older edition.
(2) Baldus, Possession in Roman Law (In: Oxford Handbook of Roman Law and
Society), Baldus, Ch. 41.
Law Library, Short Loan, KJA147 Oxf.
Full Text on DiscoverEd
-A very good, recent scholarly discussion of possession and its evolution as a
concept in Roman law, with engagement in primary Roman legal texts. Highly
recommended.
(3) Hausmaninger and Gamauf, Casebook on Roman Property Law, pp. 3-102
Law Library, Reserve, KJA2436.A2 Cas.
Not Available Online
– An extensive treatment of the requirements that had to be met for a possessory
interdict and the definitional problems that one encounters in the juristic literature.
(4) Foundations of Private Law, Gordley, Ch. 3.
Law Library, Short Loan, K623 Go.
Not Available Online
– An interesting, if abstract, discussion of the relationship between ownership and
possession and how one might justify the protection of possession.
(5) Frier, Rise of the Roman Jurists: Studies in Cicero’s “Pro Caecina”
Law Library, Reserve, KJA690 Fri.
Full Text on DiscoverEd
– This is a discussion of a speech Cicero gave in his capacity as an advocate in a
trial which revolved around possessory interdicts. Do not spend too much time on
this, but you might find it useful as an illustration of how these disputes operated in
practice and the role of the Praetor and jurists in resolving them.
(6) Buckland and McNair, Roman Law and Common Law, pp. 420-423
Law Library, Standard, KJA162 Buc.
Full Text on DiscoverEd
– A very short discussion of the possessory interdicts in the context of their
influence on later jurisdictions.
This list is by no means exhaustive. If you are not in Edinburgh and there is any
material in the Law Library you would like me to photocopy for you, please let me
know by the Christmas vacation. Please do not ask me to do this at the last minute
as photocopying is not my favourite activity in the world!
Lastly, I cannot stress enough that in a forensic essay, your first reference should be
to the primary Roman legal texts. This includes the Digest, Code and Institutes. If
you do not engage directly and seriously with these texts you will not receive a good
mark. The point of referring to secondary literature like textbooks and articles is to
help you engage with the primary legal texts more effectively, not for you to treat
them as authorities unto themselves.
Primary texts of relevance include:
Inst.4.15.4.
D.6.1.24.
D.41.2.1.1.
D.41.2.3.1.
D.41.2.3.12.
D.41.2.17.1.
D.41.2.35.
D.43.17.2.
C.8.2.
C.8.6.
Thank you for your email. I understand it is very difficult to find good online resources on
the interdicts specifically. Here are some ideas which will hopefully get you unstuck.
The first thing to bear in mind is that the interdicts form part of the Praetor’s imperium. All
leading magistrates in the Roman Republic had imperium, or the ability to control public
matters. The extent of their imperium depended on the functions they had to perform as
part of their office.
What this means is that the interdicts, like the formulary actions, do not have their origin in
the ius civile, or the statutes and customs of the Roman people. They are a direct application
of magisterial power. So, the advantages and disadvantages of the interdicts are closely
related to the evolution of the Praetor’s role and his role as the main source of legal
innovation in the late Republic. You may wish to think about the benefits or drawbacks of
this process.
Secondly, while the interdicts do form part of the Praetor’s imperium, they do not form part
of his iurisdictio, or his power to determine matters of civil litigation. This means that while
they are useful for the administration of justice, they cannot permanently secure the rights
of the litigants. Instead, what they do is provide “immediate protection to threatened or
violated interests of the plaintiff” (Honoré, Roman Law and Procedure, Oxford Companion
to Classical Civilisation). What are the advantages or disadvantages of this provisional
protection? What effect did it have on the rest of civil procedure?
Thirdly, the interdicts serve multiple functions. They protect interests of a public character
such as rights of way, but also private rights under immediate threat. The most significant
were bonorum possessio and possession – both of which, it is worth noting, were Praetorian
innovations. The value of the interdicts is therefore very closely tied up with the value of
possession itself and especially why possession was protected independently from
ownership.
Lastly, any discussion of the interdicts must acknowledge the arbitration-like qualities of
Roman legal procedure. The Praetor rarely enforced an interdict himself. It was expected
that the parties would take steps to protect their own interests. Disputes over an interdict
therefore often set the stage for a rei vindicatio – the action for an owner to recover their
property – if the party to which the interdict addresses itself chooses to ignore it or disputes
it. As I was saying in a previous email, the main impact of the possessory interdicts on
property disputes was to allocate the burden of proof. Whoever was found to have
possession would act as the defendant in any future action for vindication of property, while
whoever was not in possession would act as the plaintiff.
I hope this helps! I have copied your classmates in case they find this useful.
Quiritary ownership refers to dominium, which is the earliest and most heavily protected
real right in Roman law. The term quiritary stems from quirites, which was a Latin term for a
Roman citizen. This is because the only methods by which dominium could be obtained in
the early Roman law – mancipatio or cessio in iure for example – belonged to the ius civile
and were therefore only accessible to Roman citizens or peregrines who held the right of
commercium.
Until the late Republic, dominium was the only form of ownership recognised in Roman law.
A problem arose, however, where one of the ius civile modes by which dominion was
acquired was performed incorrectly – for example, if the ceremony of mancipatio was
performed without the necessary witnesses. Remember in this context that mancipatio was
a formal mode of acquisition and the validity of the transfer of property therefore depended
on adherence to its formal requirements. A similar problem arose if the parties chose an
inappropriate mode of acquisition to begin with – for example, if they attempted to transfer
res mancipi using traditio (delivery) when it was in fact necessary to use mancipatio or
cessio in iure for res mancipi.
In both these cases, there would be a defect in the title of the transferee and they would
not immediately become the dominus. It is likely that in early law, the transferor (who
remained the dominus) would be able to retrieve the property from them (provided they
had not yet usucapated), even if they had previously been willing participants in the
transfer. The Praetor considered this lack of protection for transferees with a defect in their
title to be unacceptable. He provided them with an exceptio (defence) against a vindicatio
(an action for recovery of property) brought by the dominus. Later, he granted them the
ability to recover property from the dominus, by asserting a fiction that the period of
usucapation had already elapsed.
The combined effect of these Praetorian protections was to put transferees with defective
titles in much the same position as the dominus usually would be. They became known in
Roman law as bonitary owners (at least until they usucapated, at which point they of course
became the dominus themselves). The term bonitary stems from bona fides or good faith.
This reflects the idea that a transferee who acquires property in good faith should not be
deprived of their title by a flaw in the mode of acquisition. Good faith is an important part of
the ius honorarium – the law introduced by the Praetor in exercise of the imperium of his
office – and you will encounter it elsewhere in the course, especially when we come to look
at Roman contracts. Bonitary ownership is a good example of how the ius honorarium could
amend and ameliorate the ius civile where it produced harsh results for the parties.
If you check the index of Borkowski’s Textbook on Roman Law, you will find several
references to vindicatio. However, I agree these are very limited. The best resource
on vindicatio is the Casebook of Hausmaninger, Gamauf and Sheets, which is unfortunately
currently only available in the law library’s print collection.
There is a good section specifically on vindicatio in George Mousourakis’s Fundamentals of
Roman Private Law, in the chapter on property. You can also find good chapters about the
Roman law of property, both of which mention the vindicatio without devoting a specific
section to it, in David Johnston’s Roman Law in Context, as well as in the Cambridge
Companion to Roman Law. All three of these resources are currently available online via
DiscoverEd.

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