Real rights over the property of another in Roman law
Real rights over the property of another in Roman law

Summary/Abstract: Iura in re aliena or real rights over the property of another are recognized in the modern doctrine as the product of the dismemberment of attributes that fall within the scope of the legal content of the right of ownership. As a result, the real rights resulting from the separation of the attributes of the right to ownership are now known as dismemberments of the right to ownership. In a restricted sense, these dismemberments are: the right of servitude, the right of superficies, the right of usufruct, the right of use and the right of habitation.In Roman law, under the name of Iura in re aliena those rights which were consti-tuted over a foreign asset were consecrated, by which on the one hand certain benefits were conferred to the rightful person and on the other hand limitations to the property right were imposed. The fact that the name of dismemberments was not known to the Romans, with it being a creation of modern law, did not entail, however, that they were foreign to the concept of establishing real rights over the property of another. On the contrary, the way in which they elaborated the institutions of superficies, emphyteusis and servitude rights (among which usufruct, use, and habitation were included), which have lasted for so many centuries, reflect their exceptional spirit of creating laws. The purpose of the present paper is precisely to highlight the fact that the jurisprudence in Roman law is a cornerstone in the construction of current legal institutions such as the dismemberment of rights of ownership. With the natural differences generated by the historical evolution of the society, the dispositions created by the Romans both regarding the concepts, the conditions of exercise, the types, the ways of acquisition or extinguishment; but also the legal sanc-tion of these real rights were, to a large degree, transposed by the legislator and adapted to the requirements of the time.

• Details
• Contents