Iura praediorum
Iura praediorum (also: servitutes praediorum , servitutes reales ) was the collective name for predial or real servitute (easements) in ancient Roman law . The restriction of the absolute right of property through easements was an important part of property law .
Legal content
By means of an easement, a property owner granted a neighboring property owner a real right to use his property. The owner of the “ruling” property ( praedium dominans ) could, as the person entitled to servitude, assert special toleration or omission rights on the “serving” property ( praedium serviens ) , such as the granting of access or viewing rights. The property, which was restricted by the right of use of the third party, already seemed to the Romans to be a limited liability , because it became part of the property's content. Servitutes are said to have been split off during the republic and given independent rights.
A distinction was made between the so-called rustic or field easements ( iura praediorum rusticorum ) and the city or building easements ( iura praediorum urbanorum ). The subdivision was based on agricultural or urban earmarking, not on the basis of location considerations. The easements were to be exercised with care and were subject to criteria of prosperous coexistence and moderation of the parties involved in the interests. Before any interference with third-party rights, the interventions had to be weighed up in terms of the respective beneficial necessity.
The oldest field servitutes are the road and footpath ( via , iter ), the cattle drive line ( actus ), the water pipe ( aquae ductus ); The more recent are the right to draw water ( aquae haustus ), cattle drinking rights ( pecoris ad aquam appellendi ), rights in connection with lime distillery ( calcis coquendae ), sand mining ( harenae fodiendae ) and chalk extraction ( cretae eximendae ). Property servants were, for example, eaves ( servitus stillicidii ), as far as they protruded onto the neighbour's property, as well as height restrictions on houses ( altius nontollendi ) so that the view is not obstructed. Wall and support rights ( tigni immittendi , oneris ferendi ) as well as rain and sewage pipes ( fluminis , cloacae ) were important urban servitutes.
Predial servitutes were to be distinguished from personnel servitutes who granted certain persons real rights to (immovable) movable property .
Establishment and termination of servitude
Servitutes arose and went out according to various rules.
The order could through traditional legal assignments (also mancipatio ) done well - in respect of regulations upon death - about Vindikationslegate or, more generally, adverse possession ( usucapio ) and rem of title ( deductio ), at least if the sale of land or division method ( adiudicatio ) prospect stood. Only the Justinian legislation of late antiquity made informal agreements sufficient.
Servitutes regularly expire through waiver of rights, non- exercise ( non usus ), re-sitting or settlement. In classical law , an effective means was legal prosecution in iure cessio .
Legal protection
The person entitled to servitude could obtain legal protection through the actio confessoria . The action was aimed at determination and restitution, insofar as it was successful. The presumption of servitutes was repulsed by means of the actio negatoria .
The praetor was able to grant temporary legal protection in the preventive way of the interdict , insofar as the exercise of rights by the person entitled to servitude appeared to him to be proper. The interest in the protection of property was such that the parties took part in the process in reverse roles in order to restrict the owner's (impermissible) power.
Remarks
- ↑ Heinrich Honsell : Roman Law, 5th edition. Springer, Zurich 2001, ISBN 3-540-42455-5 , pp. 73 f.
- ↑ Positive action could never be forced, see: D 8.1.15.1.
- ↑ a b c d Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 172–174.
- ↑ Dig. 8.3.
- ↑ Dig. 8.2.
- ↑ Ulpian , Dig. 8.3.1. pr.
- ↑ a b Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 13 no. 23 ff. And § 16 no. 7 ff.
- ^ Paulus Dig. 8.2.20.3–6.
- ↑ Gaius 2:31; Dig. 8.2.2.
- ↑ Gaius, Dig. 8.2.2.
- ^ Max Kaser : Roman private law . 15th, improved edition, 1989, ISBN 3-406-33726-0 , § 25 II, p. 118 ff.
- ↑ Ulpian, Dig. 7.6.5.1.
