Volume 9, 2024

Superficies – real right of praetorian origin

Lecturer Ionuț CIUTACU, PhD, Associate at Bucharest University of Economic Studies Law School

Abstract: At the time of its founding, Rome was a simple fortress built in Latium, erected on the Palatine Hill, inhabited by a small population. The subsequent growth of the population determined the expansion of the fortress on the neighboring hills. Rome’s expansionist policy led to an increase in the number of urban settlements, and this fact triggered, at some point, a housing crisis. Roman jurists tried to find solutions. They identified lands on which constructions could be built, but they belonged to the state, a fact that generated several legal difficulties. These problems were solved by perpetual leasing of state and city lands to private individuals in exchange for sums of money. Later, this legal figure was extended to lands in private ownership. The extension of the superficies effects required the taking of effective protective measures. They were created by the praetor, who allowed the person who had the right to use the interdicts of the possessor and bring real actions in court.

Keywords: praetor, superficies, superficiebus interdict, useful actio in rem.

DOI: 10.24818/RCLR/2024/9.03 1. Social relations have developed since ancient times due to the need of people to live together with their fellows. Initially, they were not aware of the need to create rules of conduct to regulate these relationships. But the development of society and the growth of essential needs imposed social organisation, the creation of social values and their defense by means of rules recognised as such by the members of the entire community.

After the emergence of the state, the mentioned norms became mandatory. They regulated the most important categories of social relations, which they transformed into legal relations. Because the content of legal relations differs from case to case, depending on how the subjective rights fall into the category of real rights or debt rights.

The real right (ius in re) is a patrimonial right with an absolute character. This feature allows its owner to exercise the prerogatives over an asset without the competition of another, provided he does not commit an abuse of right. Due to their importance, real rights are limited and expressly regulated by law. The oldest and most important real right is the right to property. It has three attributes: the right to possess the asset (ius possidendi), the right to use the thing (ius utendi and ius fruendi) and the right to dispose of the asset (ius abutendi). For a long time, it was the only real right included in the content of legal relations. But the subsequent evolution of legal ideas highlighted the possibility of two people exercising, separately, different attributes of the right of ownership³.

Roman private law never knew the modern concept of dismemberment of property rights, because the Romans did not accept the idea that ownership of land could be dismembered. However, they admitted that there are atypical situations, which they clothed in real rights bearing on the work of another (ius in re aliena) .

2. Real rights over another’s work were of several kinds. One of them is the superficies right. It allowed one person to build and use a building on another’s land⁵. This right was established by means of the lease agreement, in which a contractual clause was inserted, that granted the right to construct a building on that land.

In the very ancient era, when the Eternal City was a mere fortress in Latium, superficies existence was not possible. The founding members of Rome were common people, who had founded the city on the Palatine Hill. Later, the development of society forced the expansion of Rome and the other hills around the Palatine⁶. In this phase of the evolution of the Roman society, the Romans dealt with shepherding and agriculture, and their life was governed by simple legal norms, which regulated the most important social relations. One of the most important values for them was the right to property.

The ancient Romans confused the property right with its object. They did not say that they were the holders of a property right, but haec res mea est (this thing is mine). This mentality was due to the fact that they considered themselves descendants of the god Mars and had a master mentality. This explains the fact that property was not considered a real right, but a power, which is not transmitted, but extinguishes, and a new power will be born in the person of the acquirer.

As long as the Romans had this vision of property rights, things could not evolve. But society developed, and Rome expanded first over all of Latium, and then over all of Italy. The new realities no longer allowed the Romans to promote legal concepts specific to the very old era. That is why jurists were forced by reality to create other legal procedures than private property, among which we mention the real rights over the work of another (iura in re aliena). The aforementioned legal proceedings differed from property in that they had as their object an asset that was owned by another person. Therefore, they coexisted with the right of ownership and independently of it, although they had as their object the same good⁷. Not coincidentally, the Romans considered the real rights over another’s good as encumbrances that encumbered the right of ownership⁸ as long as their holder complied with the legal conditions.

3. For a large part of the ancient era⁹, the documents of the time did not mention the existence of the right of superficies, because the society was not sufficiently developed, and the inhabitants did not feel the need to build more houses. But things have changed. The transformation of colonies and cities in the Empire, including Rome, into important urban centers attracted large numbers of people who needed housing. Towards the end of the 2^nd Century BC, the need for housing, natural disasters, fires, and the effect that wars produced on society triggered a real estate crisis. Roman jurists looked for solutions and turned their attention to the lands in public domain. In today’s parlance, ager publicus was the equivalent of state property, which was usually fed with territories conquered from enemies. Publicly owned real estate could not be transferred to private property. Under these conditions, no one was interested in building on state land, especially since the building became state property as a result of the accessio. Accessio was a way of acquiring property that was achieved by incorporating the accessorium good by the main one¹⁰. In our hypothesis, the main good was the land, because it retained its individuality after the incorporation of the house, which was the accessorium good.

Another problem that arose was the form of possession of the property. Roman legal texts established three forms of property ownership: ownership, possession, and detention. But these forms appeared in a certain order. The master mentality of the Romans made property the first form of property ownership. This real right allowed its owner to use the asset, to harvest its fruits and to dispose of it. The needs that arose in social practice determined the appearance of the second form of property ownership: possession. Possession was a state of fact, protected by law. It appeared against the background of the exploitation by the patricians of the lands in the ager publicus, and later it was generalised to the lands in private ownership. The possessor enjoyed the legal protection of interdicts¹¹. But the long possession of an asset led to the acquisition of ownership through usucapio. To avoid such consequences, the Romans created the third way of possession of goods: detention.

Detention was similar, to a point, to possession, because it presupposed the existence of the same elements: corpus and animus. The corpus of the detention was identical to that of the possession and was realised through the material acts of ownership of the property. Conversely, animus was different because it denoted the intention to keep the thing for another. But even the detention did not bring major advantages to the one who wanted to build on someone else’s land, because the terms that would have been stipulated in the lease contracts would not have been long enough to allow the tenant to recover the expenses incurred for erecting the construction.

4. To solve the real estate crisis, land had to be found on which to build homes. The first solution that the Roman jurists thought of was the leasing of state lands and cities. The rental could be done by using the rental agreement. This contract was designated by the Roman legal texts by the expression locatio rei and consisted of the transmission of the use of a thing by the owner to the tenant, in exchange for the price that had to be paid by the tenant^12. So, initially, the person building on someone else’s land could exercise a long-term claim on the construction. This was also due to the Roman conception, according to which land ownership was not divided horizontally. The building was an accessory to the land, since a famous legal principle established that superficies solo cedit. This follows from two texts of the famous iurisconsultus Gaius. The first comes from the Institutes, from which it follows that “what was built by someone on our land, even if he built in his name, which becomes ours, by virtue of natural law, because the building above a place follows its condition (superficies solo cedit)”^13. The second text comes from Gaius’ comments on the provincial edict. According to him, the houses are part of the land superficies where they were erected in accordance with the clauses stipulated in the lease agreement. Therefore, according to civil and natural law, they will belong to the owner of the land^14.

To enjoy the possession of the home, the one who built on another’s land had to pay a sum of money in exchange for the possession of the construction. In this sense, the famous iurisconsultus Paul emphasised “superficiario (…) est qui in alieno solo superficiem ita habeat, ut certam pensionem praestet”¹⁵. So, the tenant could use the house for an unlimited time, provided he paid the amount of money (solarium) established by the lease contract. The payment of the sum of money amounted to recognition by the tenant of the state’s ownership of the land¹⁶ and encouraged citizens to build on state land. At some point, the state lands became insufficient. That’s why the mentioned legal operation also extended to vacant land in private ownership. Regardless of the legal nature of the land on which the construction was erected, the protection of the new legal figure was not ensured against the owner and against third parties as long as the private processes were organised in accordance with the rules of legislative procedure. First of all, because this procedural system required the parties to the trial to utter solemn formulas, the wrong utterance of which attracted the loss of the trial. And secondly, because the legislation procedure did not know legal actions to protect real rights over someone else’s good, but only the property right. The ancient procedural system was likely to affect the prestige of the idea of justice, or the Romans did not agree with such a thing. Fortunately, things changed in the second half of the 2^nd Century BC, when the form procedure appeared. From this moment, the praetor, if he found that a new legal situation had arisen in practice, he could make an action or exception available to the parties, by which he would help them to assert their rights in court.

The first measure taken was mentioned by the iurisconsultus Gaius. He conveys to us the fact that the judicial magistrate granted the tenant an exceptio doli¹⁷, which he successfully opposed to the owner if he invoked the acquisition of ownership of the building by means of accession without compensating the tenant for the expenses incurred. But even this measure was not enough, because the superficiarius continued to be a simple holder, who could not defend himself in court against the potential abuses of the land owner, nor against third parties, without the latter’s intervention.

5. The praetor also came up with the saving solution. The long-term ownership of the construction was assimilated to a real right. As the possession of the building could not be separated from the ownership of the land, the superficies was transformed into a legal institution that could be legally protected by means that, normally, only the owner of the property right could use: real actions and the possessor’s interdicta.

Not always, the holder of a subjective right had to resort to legal action. There were situations in which the praetor did not consider it necessary to organise a trial, which took place in two phases: one before the magistrate, and the other before the judge. In such cases, the praetor resolved the dispute through administrative procedures resulting from his right of command: the possessor’s interdicta. And this time, the praetor outdid himself. Not only did it make available to the superficiarius two of the interdicts already established for the recovery of lost possession, unde vi and de precario¹⁸, but also created the possibility for the superficiarius to protect himself by means of a specific interdict, de superficiebus^19.

However, there were also situations in which the prohibitions were not sufficient for the protection of the superficies. In order to provide solutions, the magistrate created praetorian actions modeled on the claim action, actio confessoria and actio publiciana. Through the action modeled after the claim action, the superficies could recover the lost possession from the non-proprietary possessor. We underline the fact that this was filed after the land owner acquired the quality of possessor by means of de precario interdicta or the interdicta for the recovery of possession lost through violence (unde vi). The action created after the model of the actio confessoria was used to recognise the existence of the right of superficies in relation to the owner of the land, and the actio publiciana allowed him to recover the superficies from a non dominus. Through the actio publiciana, the praetor protected the possession of the person who had acquired the building in good faith, even if the two-year term, required for usucapio the immovable property, had not been fulfilled.

6. More than once in the history of Rome, Roman legal institutions evolved due to the evolution of the praetor. Not by chance, a great Roman jurisconsultus stated that ius pretorium viva vox est iuris civilis (praetorian law is the living voice of civil law). And this time, the praetor had a creative role, which manifested itself by adapting some administrative procedures arising from the imperium and by adapting some legal actions. The aforementioned legal proceedings had the effect of transforming ownership of the building erected on the land belonging to another person from a right of claim into a true real right, contributing to the enrichment of Roman law with another real right over the work of another: the right of superficies.

References

• Gaius. Instituțiunile dreptului privat roman (Institutions of Roman Private Law), translation, introductory study, notes and annotations by Aurel N. Popescu, RSR Academy Publishing House, Bucharest, 1982.
• Iustiniani Institutiones. Instituțiile lui Iustinian, Latin text and Romanian translation, with notes and introductory study by Prof. Dr. doc. Vladimir Hanga, Editura Lumina Lex, București, 2002.
• Gabriel Boroi, Carla Alexandra Anghelescu, Curs de drept civil. Partea generală (Civil Law Course. General part), third edition, revised and added, Hamangiu Publishing House, Bucharest, 2021.
• Ion C. Cătuneanu, Curs elementar de drept roman (Elementary Course of Roman Law), 3^rd edition, Cartea Românească” S.A. Publishing House, Cluj-Bucharest, 1927.
• Valerius Ciucă, Lecţii de drept roman (Lessons in Roman Law), volume I, Polirom Publishing House, Iasi, 1999.
• Valerius Ciucă, Lecţii de drept roman (Lessons in Roman Law), volume II, second volume, Polirom Publishing House, Bucharest, 1999.
• Romulus Gidro, Aurelia Gidro, Istoria Romei. Regalitatea de la întemeiere la Republică (753 î. Hr.-509 î. Hr.) (History of Rome. Kingship from foundation to Republic (753 BC-509 BC)). Volume I, ProUniversitaria Publishing House, Bucharest, 2023.
• Paul Frederic Girard, Manuel élémentaire de droit romain, septième édition, Librairie Arthur Rouseau, Paris, 1924.
• Paul Frederic Girard, Textes de droit romain, Librairie Nouvelle de Droit et de Jurisprudence, Arthur Rousseau Ėditeur, Paris, 1890.
• Constantin Hamangiu, Matei G. Nicolau, Dreptul roman (Roman Law), edited by Alin-Gabriel Oprea, Hamangiu Publishing House, Bucharest, 2022.
• Vladimir Hanga, Cetatea celor șapte coline (The Fortress of the Seven Hills), Tineretului Publishing House, Bucharest, 1957.
• Vladimir Hanga, Curs de drept privat roman (Roman Private Law Course), Cluj, 1958.
• Cristian Jora, Drept civil. Curs de drepturi reale (Civil Law. Real rights course), Lumina Lex Publishing House, Bucharest, 2005.
• Gaston May, Ėléments de droit romain, quinzième édition, Recueil Sirey, Paris, 1925.
• Charles Maynz, Cours de droit romain, cinquième édition, tome premier, Bruylant- Christophe&Cie, A. Pedone&Pedone-Lauriel, Bruxelles-Paris, 1891.
• Alexandru Minculescu, Dreptul de superficie (Superficies Right), Bucharest, 1945.
• Emil Molcuţ, Dan Oancea, Drept roman (Roman Law), Casa de Editură şi Presă “Şansa” SRL, Bucharest, 1993.
• Emil Molcuţ, Drept privat roman. Terminologie juridică romană (Roman private law. Roman Legal Terminology), Universul Juridic, Bucharest, 2013.
• Anna Plisecka, Accessio and specificatio reconsidered, Revue d’histoire du droit, tome LXXIV, 1-2, 2006.
• Bruno Schmidlin, Droit privé romain. Vol I. Origines et sources. Famille, biens, succesions, Faculté de Droit de l’Université de Genève, 2008.
• Valeriu Stoica, Drept civil. Drepturi reale principale (Civil law. Principal real rights), vol. I, Humanitas Publishing House, Bucharest, 2004.
• Constantin Stoicescu, Curs elementar de drept roman (Elementary Course of Roman Law), 2nd edition, Typografia ”Naţionala” Jean Ionescu&Co, Bucharest, 1927.
• Constantin St. Tomulescu, Drept privat roman (Roman Private Law), University of Bucharest Typography, Bucharest, 1973.
• Dumitru Tudor and collective, Enciclopedia civilizaţiei romane (Encyclopedia of Roman civilization), Ştiinţifică and Enciclopedică Publishing House, Bucharest, 1982.

← Back to Issues & Articles