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CLH TOPIC THREE: THETRANSFER OF OWNERSHIP II(abstract vs causalconveyance)

! Ro"an la#

a. the meaning of abstract and causalconveyance: note that this is not Romanterminology

b. The meaning of iusta causa in classicaltraditio

Contrast Ulpian in D 1.1.1! "ith #ulian in

D $1.1.%&.

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T$ree cases:

a. ' thin(s he is transferring a chariot inpursuance of a sale but ) thin(s he isreceiving it as a gift.

b. ' and ) sub*ectively agree on anunderlying reason for the transfer+ e.g. asale+ but this purpose is ob*ectivelydefective+ e.g. because the sale is invalidby statute regulating chariot sales.

c. ' thin(s he is discharging a stipulatorydebt+ and there is indeed such a debt+ but) thin(s he is receiving the chariot as agift.

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T$ree v%e#s o& causa:

1. ,f a causais an ob*ectively valid transaction+

such as a sale+ then o"nership "ill pass incase c but not in cases a or b.

. ,f causais a sub*ective agreement bet"eenthe parties as to the ob*ective reason fortransferring o"nership+ then o"nership"ould pass in case b+ but not in case a orcase c.

%. -lternatively "e could reuire only that theparties intend to transfer and receiveo"nership of the thing. ,n that caseo"nership passes in all three cases.

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The position in classical Roman la"/ Traditioprobably causal in the first sense.

0ut note the confusion in #ustinians Digest+possibly due to interpolation of the classicalsources by the Compilers.

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