Editing Usucaption (section)

===Roman law===

====Background to usucaption====
{{main|Usucapio}}
The necessity for usucaption arose in [[Roman law]] with the divide between ''[[res mancipi]]'' and ''[[res nec mancipi]]''. ''Res mancipi'' required elaborate and inconvenient formal methods of conveyance to transfer [[title (property)|title]] (a formal ''[[mancipatio]]'' ceremony, or ''[[in iure cessio]]'').<ref name="Gaius">{{cite book|last=De Zulueta|first=Francis|title=The Institutes of Gaius|year=1946|publisher=OUP|isbn=0-19-825112-2}}</ref><ref name="Gaius (online)">{{cite web|title=The Institutes of Gaius|url=http://thelatinlibrary.com/law/gaius.html|publisher=thelatinlibrary.com|access-date=23 March 2012}}</ref> ''Res nec manicipi'' could be transferred by ''[[traditio]]'' (delivery) or ''in iure cessio''.

The remaining form of [[Conveyancing|conveyance]] was ''traditio''. This was an informal conveyance which only required the intention to transfer and [[deed|delivery]] of the property. If ''res mancipi'' were transferred by ''traditio'', full [[ownership]] would not pass and the recipient would become a [[bonitary owner]].

Therefore, another form of conveyance was required that did not necessitate a ceremony or appearance before the [[praetor]]. Because Rome was becoming mercantile, it was simply inconvenient to perform a formal conveyance simply because property was classed as ''res mancipi''. There might also be a demand to transfer property in private between the transferring parties, such as in the establishment of ''[[fideicommissa]]'' (Roman trusts).<ref>{{cite book|last=Johnston|first=David|title=The Roman Law of Trusts|year=1988|publisher=Clarendon Press|isbn=978-0-19-825216-0}}</ref>

The need for establishing ownership by means other than conveyance was also a result of the practical defect of a system of ownership based on valid transfer. Title to [[property]] could be challenged under this system, because it depended on the good title of the person from whom you acquired the property and so on. If any person's title in the chain were challenged successfully, then this would defeat any title derived from it. This defect required a means of establishing [[ownership]] that was not contingent upon a chain of title but could be established independently.<ref name='Johnston, "Context", pp.54-55'>{{cite book|last=Johnston|first=David|title=Roman Law in Context|year=1961|publisher=Cambridge University Press|isbn=0-521-63961-1|pages=54–55}}</ref>

====The Roman Law of Usucapio====
However, if a [[bonitary owner]] kept the ''res'' (property) in his [[Possession (law)|possession]] for a certain amount of time (two years for land, one year for [[Personal property|chattel]]s) his [[title]] would become full [[title]] and he could assert himself as ''[[Dominus (title)|dominus]]''.

Usucaption was the solution that emerged to address the defects of Roman [[ownership]]. It required five elements:<ref name="Nicholas p. 122">{{cite book|last=Nicholas|first=Barry|title=An Introduction to Roman Law|year=1962|publisher=Oxford University Press|location=London|isbn=0-19-876063-9|pages=122}}</ref>

# Uninterrupted possession of the property for the requisite period (one year for chattels, two years for land);
# The [[property]] was capable of being owned. Not a free man for example;
# [[Good faith]]. For example, a buyer might purchase a [[slave]] (categorised as [[res mancipi]]) in [[good faith]] but find twelve months on that the [[vendor]] did not himself have good [[title]] to that [[slave]];
# ''[[Iusta causa]]''. A proper ground for acquiring the [[property]], e.g. showing that the acquirer paid for the [[property]].
# The property must not have been stolen any time or taken by force.

This largely ameliorated the problems experienced by [[Conveyancing|conveyance]] as a means of establishing [[ownership]], but could still yield harsh results. A purchaser of res mancipi could be on his way to successfully usucaping the property (e.g. 11 months in possession) but would lose his claim to it if his possession was challenged before the period of usucaption by someone who could establish title.

Usucaption was altered by the [[Actio Publiciana]] (see [[Institutes of Gaius|Gaius]] 4.36<ref name=Gaius /><ref name="Gaius (online)" />) which gave scope in the [[vindicatio]] (the action for property) for a fictitious usucaption. Such a situation would only arise where the claimant's possession of the [[property]] had been interrupted before the period required to usucape it had elapsed. The [[Actio Publiciana]] made provision for the possessor of the [[property]] to be taken to have usucaped it successfully, if he could show that he would have usucaped the [[property]] had his possession of it not been interrupted. In this way usucaption became the dominant form of establishing [[ownership]] in [[Ancient Rome|Rome]].