NARRATOR: Thanks for joining this episode of the No. 86 lecture series, in which Professor Richard Epstein discusses property rules in the Roman Law. Episode 4 covers the legitimate transfer of property, and how our modern system relies on the same principles as the Roman system did. This lecture is part of a series with Professor Epstein on how this ancient legal system can provide crucial insights about modern problems. Professor Epstein is one of the most prominent legal scholars of our day. He is the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, a Senior Fellow at the Hoover Institution, and Professor of Law Emeritus and a senior lecturer at the University of Chicago. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: In the previous episode, you spoke about acquisition and possession. Can you now talk about how property can be legitimately transferred? Do our modern legal arrangements resemble the Roman approach? RICHARD EPSTEIN: So far what we've done is we've talked about the acquisition of property, and once you acquire it, how you create divided interest in this property, or simple transfers. It turns out that every legal system, when it deals with this, has two kinds of transfers that take place. One is when everything turns out to be an apple pie order, so that all the formalities associated with mancipatio for example are going to be observed, or a deed is going to be observed. And then there are the other cases that start to take place when it turns out that people mess up and don't observe the formalities that are necessary. And the question is what you're going to do about that. And here, the situation, it can be described in a very simple fashion. A res mancipi, which is land or a slave of one kind or another, or a herd of animal, is supposed to be transferred by a formality. But it doesn't follow that everybody knows what these particular formalities are supposed to be. And sometimes what will happen, is that they will simply hand the thing over to somebody else and don't observe the formalities, so that now what you do is you have a division. And what the Romans said was that the division was between the person who was the owner and the person for whom the particular thing was in bonis. And those two Latin word means, among the goods of that particular person. Modern scholars, I think do it somewhat of a disservice, when instead of using the words "in bonis," which is a kind of a thing, is now amongst my goods in possession, they call this a form of bonitary ownership. It's a much fancier term, not a literal translation of the Latin. The same thing can happen under Angelo-American law, because there's nothing about mistakes, which confine them to ancient Rome. And what the Angelo-American system did, was they too had two words. One word was somebody has legal title, and the other person had an equitable title. And the legal title essentially gave you full rights against the world, and the equitable title gave you more limited protection, chiefly against the landlord under these circumstances, or the transfer role. And so the great challenge that every legal system has, is the way in which you start to create a unification of the two titles. How you give the legal title to the person who's in possession of this thing amongst his goods in service? And the way in which this tends to be done is through the passage of time. And the way in which that goes is as follows, you say, "Look, you've been doing this for a certain period of time." The fellow with the legal title has done nothing whatsoever to assert that claim. It may well be that you can't even find him to get him to give a formal transfer to clean the thing up, but after a relatively short period, in which you have sole and exclusive possession of something amongst your own goods, we will now treat you as though you are the owner of this particular property. And we say that you've acquired it by usucapion, which is a very nice word. And it means by use, you have captured, or occupied, or taken the property in question. And so what happens is, the passage of time gives you a way to clear up the mistakes that take place, when the various formalities have not been observed. The same thing, by the way, can happen in other kinds of arrangements. So take marriage. Normally what happens is a marriage is a formal ceremonial act. But sometimes people get married and in the haste and the passion of the moment, they forget about the ceremonies and they just say, "I do, I do, I do." And then you have to worry about the status of the children to this kind of relationship if the formalities are not observed. And so we use exactly the same technique of so-called common law marriage, which is after a certain period of time, if there's been no dissent and no objection and no breaking of the way in which the possession has been done, what we say is that a common law marriage is now an official marriage, the children are now children of a legitimate marriage and so forth. The couple are married as man and wife, because we don't want the want of formalities to be a permanent obstacle to the creation of this kind of arrangement. So that's the first kind of question that we start. Now the second kind of problem that we have is slightly different. And here you also have a question of two titles. And you still have to worry about the usucapion, that is the taking by possession. But the situation is somewhat different. And here's what it is. I own a piece of property, and somebody comes on the land and takes possession of it adverse to myself. And just to make these things simple, it turns out when they take it, they take the whole thing. They take it with the claim to treat it as though it were their own. They never leave the possession, so there's never gap in this type of situation. They consistently assert this title over a long period of time, everybody in the world knows that they're treating it as though it's theirs. If their tax is to be paid, they pay the paper. So what they do is they basically treat the whole thing as if it it's own. And the question you now have to do is to figure out what is the relationship of this person who comes in by way of adverse possession, to two classes of people? Well one, the original owner of the property, who in principle is entitled to recover the thing, and then second, the question of this particular person. And the relationship that he or she has to the rest of the world, having taken. And these are immensely important issues in any society in which there's an instability of possession because of a weak degree of central control. And so the Romans spent a lot of time worrying about this, and the English during the original feudal period spent a lot of time worrying about as well. Now, the question then is, what's going to be the duration of these arrangements? If it turns out what you're trying to do, is to go against the owner of the property in a defective conveyance case, the shorter you keep this thing in limbo, the better it's going to be. Because there's no real strong interest of the owner to take back something when he's already been paid for it, and the only thing is a gap in formality. But there's a huge debate as to the optimal rate of time that a true owner has in order to come into the property, when in fact it's been usurped from his particular possession. Everybody agrees that it ought to be longer than it is in the other case, but should it be 2 years, 5 years, or 10 years? And the Roman law starts with short periods and then slowly develops the separation between these two particular areas, are so that the person who is in fact the landlord has a longer period to go into court and order to reclaim the property. There are usually rules that take place in most system, which if you are dispossessed today, you can forcibly repossess the property tomorrow, and you don't have to go into a legal system. Then there's the period of legal relief, then there's the period in which nothing whatsoever can happen. And every legal system has to face this problem. The second problem that you have to face is now that this person is in an adverse possession from the original party, what's going to be the standard that takes place with respect to the rest of the world? Now the Roman's did not use this term, but in effect they accepted this particular principle. And it's the so-called principle which says, you can not plead as a defense to an action to recover property the rights of the third person. That is the so called ius tertiary, right? It's in the third person, a not there. So what does this actually mean? Suppose I'm sitting in possession of the property, and Mr. X comes along and he dispossesses me. Now what I do is I now sue X and say, "Give me back this property. I was sitting it in possession." And he says, "No, no, no, no, no. I don't have to do this at all." "Why not?" He says, "Well because you really don't own the property. The property was own by the party from who you dispossessed. Since you're not the owner, you can't get me to go off of it." And when the defense of ius tertiary is rejected, what you're saying under those circumstances, is you're not allowed to plead the higher title. What happens is ownership now ceases to be absolute, and it becomes relative. So if you start looking at the Roman maxim on this, they're very clear about it. They say, “prior in tempore potior in iure.”. And what that means is prior in time is higher in right. Interestingly enough, one of the most famous casebooks in American law, translates prior not as "prior," but in the early editions they transferred it as "first in time is highest in right." But that's not what the expression says, it's earlier in time is higher in right. Why do we like this temporal division? Well because it's very clear so that you're going to reduce the kinds of disputes that are going to take place. And you can now do this not only for the first guy and the second guy, but as in the ius tertiary situation, you can say higher in time is prior in right, if in fact you're dealing with a battle between the second and the third party. Or the second and the fifth party. Or the fourth and the fifth party. So what happens is you now develop a system of relative time. And if you do this, then the other guy is going to be perfectly secure against the rest of the world. If you don't do this, then what happens is, if you're dispossessed, you can't recover. But the fellow who threw you off the land, or when it turns out that somebody throws him off the property, is going to be met with the same ius tertiary device, "You don't have the right to sue, because they're two people whose title is higher than yours." And so therefore nothing can happen. And one... Here's the Anglo-American, in particularly the Scottish philosophers, was talk about the security of possession. It should never be forgotten that the great Scottish philosopher David Hume was trained as a Roman lawyer because as it turned out, Roman law was carried over and came law, actually the Roman law became the Scottish law in this situation. And when they start to talk about the stability of possessions as one of the hallmarks of a free society, what they're really thinking about is this ius tertiary in time situation, in which, in effect, the person who is in adverse possession, the second that that person acquires property, has full, and complete, and total rights against everybody else inside the overall legal system. Now things can start to become complicated if you think about these variations. Suppose it turns out that number three takes it from number two. And now number one, before the statute of limitations is won, comes against number three. Well under those circumstances, he should be able to recover this property. And that means that number two is now out in the cold because you can not say once the property by number three has been given to number one, that number two can claim as well. You're precarious both ways. Since number one has already acquired the property, number two has no claim against him, because the statute of limitations is not run, so prior in time is still higher in right. If it turns out that the statute has run, and number one tries to sue, it turns out that certainly number two can say the statute has run. And generally speaking, it'd be more sensible to say that number three can say it as well. Because otherwise, what happens is the property goes to number one, and then number two can say, "Hey, you took my property, so I can recover it from you." So these change of title that start to develop show you something about the complexity of the law. How important is this problem today? And the answer is with peace forces, people normally get restored to their homes within minutes or hours after they're thrown off. So that the adverse possession law rarely starts to talk about sort of fundamental instabilities in a legal system. It tends to be concerned chiefly with such things as boundary disputes between two neighbors, and so I build my fence one foot over the line to your property, and after 30 years it sits there. And the question we have to say is, is does the boundary line move, or can the neighbor come along and claim that one foot strip of land? Clearly the entire system is not going to rise or fall on this stuff, but the adverse possession rules are generally going to take place under those cases as they would under Roman law, but it's a miniature problem than a major problem. The most interesting cases that have turned out on the modern law have to deal with the possession of caves, in which the entry to a cave that is under two parties land, is only on one person's land. And the question is whether or not adverse possession can run against somebody who controls the entry point to the cave and uses the property underground of somebody else, to which the answer is divided, but in the usual cases, yes. And then you get real problems about, do you really want to give somebody the right of the exclusive use of the cave that he can't enter? And what usually happens is the government condemns the caves, pays both parties their interest, and then treats the darn thing as though it were a natural park. And so that becomes the other part of these kinds of arrangements. And essentially, if you've understood this stuff, then what you do is you have a system of real property law that goes more or less from soup to nuts. What it does in effect is it starts from first possession, it then tells you how you could transfer and divide interest, and then it starts to tell you what to do, A, if it turns out there's defects and the modes of conveyance, and B if somebody comes and usurps the system and goes outside the chain of title. And that problem is much less important today, because we control it, not through private rights of action, we tend to throw it through ordinary peace force protection, which is so effective in these cases that we don't see many cases where people try to do this stuff. In fact the usual case where you'll see it are, can tenants remain in possession as so-called holdover tenants, when the lease has been expired? And the usual rule gives the landlord failure-effective remedies to get the person off. That would be certainly true in Roman law as well, and the interesting exception to that, which the Romans thankfully never had to deal with, is what do you do with a rent control system, which essentially allows the tenant unilaterally to extend the lease at a rent which is determined not by the landlord, but by the state. NARRATOR: Thank you for listening to this episode in the Roman Law unit of the No. 86 lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for more lectures and videos on Property, Contracts, and the Common Law. Thanks for listening. See you in class!