Inability to Abandon Property in the Civil Law

From the Mises blog. Archived comments below.

Update: see also Homesteading, Abandonment, and Unowned Land in the Civil Law (Mises Blog, 2009)

In Copyright is very sticky!, I noted how it’s hard to get rid of copyright. There is a somewhat similar aspect to modern property law. As I describe in A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability (see also A Critique of Mutualist Occupancy), under libertarian property principles, a person can acquire ownership of an unowned resource—whether movable or immovable (land)—by homesteading it—which is basically initial possession coupled with intent to own. As I noted in A Critique of Mutualist Occupancy,

Ownership is acquired by a merger of possession and intent to own. Likewise, when the intent to own ceases, ownership does too—this is the case with both abandonment of ownership and transfer of title to another person, which is basically an abandonment of property “in favor” of a particular new owner. See Kinsella, “A Libertarian Theory of Contract,” pp. 26–29; also Louisiana Civil Code, Art. 3418 (“A thing is abandoned when its owner relinquishes possession with the intent to give up ownership”) and Art. 3424 (“To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing”; emphasis added).

Interestingly, as I was looking for examples in the Louisiana Civil Code for various ways legal systems treat various aspects of property rights, I was unable to find anything in the code about either original appropriation of unowned immovable property (land), or abandonment of owned immovable property.

For movable things (personalty), the code’s provisions seem to embody libertarian principles. See: Art. 3412 (“Occupancy is the taking of possession of a corporeal movable that does not belong to anyone.  The occupant acquires ownership the moment he takes possession”); Art. 3418 (“A thing is abandoned when its owner relinquishes possession with the intent to give up ownership”) and Art. 3424 (“To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing”; emphasis added).

But unlike the case for corporeal movables, the code does not even seem to contemplate that it is possible for there to be unowned land. I was a bit shocked by this, since even if the code were to treat this an an unlibertarian way, one might expect an explicit statement such as any property for which there can be identified no owner is owned by the state; title in all property ultimately traces back to the sovereign (the state); abandoned property reverts to the estate, etc.

In the law, it is common to prove title by tracing it back to the sovereign (the state, e.g. Texas or Louisiana, or the federal government). One can in effect abandon property by actually abandoning it and letting someone else acquire title by adversely possessing it; they would acquire it after a long period of time by acquisitive prescription (10 or 30 years)–see Arts. 3446 (“Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time”); 3473 (“Ownership and other real rights in immovables may be acquired by the prescription of ten years”); 3486 (“Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith”).

Perhaps as a default rule this is reasonable–the nature of the long-term ownership of real property may require that we not presume abandonment unless a long time passes, in the absence of clear evidence; but what if the owner explicitly abandons the property? Why does it need to take 10 years for this to have effect?

Now, granted, if you are going to explicitly abandon it you might as well just convey it to someone; or sign a quitclaim deed [see note 34 of my A Libertarian Theory of Contract for more on quitclaiming]; and in any event a squatter who moves in the next day acquires a type of possession that eventually matures into ownership.)

Still, it is passing strange that the Code does not even seem to contemplate that land could be abandoned or unowned, or indeed that it ever was unowned. Maybe it is too distasteful to explicitly admit that the state has just seized the right to determine these matters.

[Update: Roman Law recognized the possibility of unowned land. See du Plessis, P. (2020) Borkowski’s Textbook on Roman Law, 6^th ed. Oxford: Oxford University Press, §7.2.3: “7.2.3 Occupatio
(lnst.Gai.2.66.-9.)
Occupatio is the law of ‘first-taking’: the first taker of ownerless property (res nullius) becomes its owner”.

This could included things which never had owners, like movables such as wild animals or gems but also immovables like islands arising in the sea. §7.2.3.1. [See Institutes of Justinian, J. B. MOYLE transl. 1955, bk. II, tit. I, at 22. me: see Digest, bk. 41.2.1 Paul, Edict, Book 54]

It could also include enemy property, in which case the first taker could own it. §7.2.3.2

And the Roman Law also recognized that owners could abandon things they own, including, presumably, immovables. See §7.2.3.2:

7.2.3.3 Abandoned property

The first taker of abandoned property became its owner providing that he had the intention of acquiring it. What was the test of abandonment? It seems that the owner must have intended to be rid of the property, no longer caring about its destination before it became res nullius:

Gaius, Common Matters or Golden Things, book 2: lt is another matter with those things which are jettisoned in stress of seas to lighten the vessel; they remain the property of their owners; for they are not cast overboard because the owner no longer wants them, but that the ship may have a better chance of riding the storm. Consequently, if anyone finds such things washed up by the waves or, for that matter, in the sea itself and appropriates them with a view to gain, he is guilty of theft. (D.41.1.9.8.)

The Sabinians and Proculians disputed the question whether the previous owner lost ownership at the moment of abandonment, as the Sabinians argued, or when another person took possession of the abandoned property (the Proculian view). The Proculians were unhappy at the possibility that important property could be ownerless for any length of time. However, the Sabinian view, more convenient in practice, seems to have prevailed.

Occupatio of abandoned res mancipi received surprisingly little attention from the jurists in view of the potential problems involved. For example, could the first taker of abandoned res mancipi acquire dominium over the property through occupatio? Certainly, if the property was then held for the relevant period of time required for prescription under usucapio. But whether dominium could arise before the lapse of the relevant period is unclear [my bold –SK]. The view that dominium over res mancipi could be acquired only through ius civile modes of acquisition (and therefore not through occupatio) is prolematic since, if that were the case, abandoned res mancipi might not fall into ownership again—a possibility which was not likely to have been encouraged in early law. In any case, there were ways in which dominium over res mancipi could be acquired by ius gentium modes of acquisition, e.g. avulsio (see 7.2.4.1). The most plausible view is that occupatio of abandoned res mancipi sufficed to give dominium immediately without the need for a period of prescription.

See also Justinian, The Digest of Justinian, trans. Alan Watson (Philadelphia: University of Pennsylvania Press, 1985), Vol. 4, 41.7:

1. ULPIAN, Edict, book 12: If a thing be treated as abandoned, it ceases forthwith to be ours and will at once belong to the first taker because things cease to be ours by the same means by which they are acquired.

PAUL, Edict, book 54: If we know that the owner regards a thing as abandoned, we can acquire it. 1. Now Proculus says that such a thing does not cease to be the owner’s until it is possessed by another; but Julian says that it no longer belongs to the abandoner but will become another’s only when taken into possession; and that is correct.

3 MODESTINUS, Distinctions, book 6: A common question is whether a thing can be deemed abandoned in part. And indeed, if one co-owner should abandon his share in a thing owned in common, it ceases to be his for what one can do with the whole, one can do with a part. But the owner of a whole cannot bring it about that he retains one part while abandoning another.

4 PAUL, Sabinus, book 15: We can usucapt what has been believed to be abandoned and what we so believe, even though we do not know by whom it has been abandoned.

5 POMPONIUS, Sabinus, book 32: Suppose that you are possessing something as having been abandoned, and I, knowing that to be the case, buy it from you; it is settled law that I will usucapt it, and it is no obstacle thereto that the thing is not part of your assets; for the law would be the same if I bought from you a thing given to you by your wife, because you made the sale, as it were, by the will and consent of the owner. 1. What someone has abandoned becomes mine immediately; just as, when someone scatters largesse or releases birds, although he does not know the person whom he wishes to have them, they yet become the property of the person to whom chance takes them, so a person who abandons something is deemed to wish it to become the property of another.

See also Herbert Hausmaninger & Richard Gamauf, A Casebook on Roman Property Law, translated with introduction, supplementary notes, and glossary by George A. Sheets (Oxford: Oxford University Press, 2012), ch. III.D, on “Abandonment and Finding”—

§ 386 Austrian Civil Code:

Any citizen of the country can assume ownership of movable property that the owner no longer wishes to keep as his own and therefore abandons. In cases of doubt, it is not to be supposed that someone wished to give up his ownership; therefore no finder may consider found property to be abandoned and claim it as his own.

§ 959 German Civil Code:

A movable piece of property becomes ownerless, if the owner abandons possession of the property with the intention of renouncing ownership.

See also Jan Rudnicki, “The doctrine of occupation and the founding of Australia,” Fundamina (Pretoria), vol.23 n.2 (2017), pp. 82–83 & n.6:

The ancient Roman rule that “what does not belong to anyone by natural law becomes the property of the person who first acquires it,”5 remains largely unchanged in civilian private law jurisdictions until today,6 and it was perfectly known to Vitoria, a theological and legal scholar of the University of Salamanca. He emphasises that the rule can be derived from both the ius naturale and the ius gentium and is therefore universally applicable. Other famous authors of the formative period of international law, including Grotius, followed Vitoria’s path. They – as Lesaffer aptly summarises – took the Roman concept of occupation and stripped it of its particulars and technicalities of private law, creating a pure legal concept applicable in international relations.7 Moving away from the main topic we can observe that such a manner of creation of rules, doctrines and principles of international law was quite common. From the perspective of three centuries it allowed TE Holland to state, perhaps with slight exaggeration, that “the Law of Nations is but private law writ large”.8

Thus, the main idea of occupation was simple but, as usual, the devil is in the detail. At least two crucial questions arise: First, what does it exactly mean to occupy land? Second, what qualities must a territory display to be considered terra nullius? In civil law both answers are rather intuitive. Occupation, since Roman times, materialises simply by taking into possession a thing that has never had any owner or had been abandoned by the previous owner (res nullius).

5. See Digest 41 1 3pr: Gaius libro secundo rerum cottidianarum sive aureorum: Quod enim nullius est, id ratione naturali occupanti conceditur. In almost the same words in I 2 1 12 (English translation in the main text by Scott The Civil Law (1932)).

6 In modern civil codes occupation as a mode of acquiring ownership is applicable to movable objects only. See, eg, sec 958(1) of the German Civil Code or art 181 of the Polish Civil Code.

]

Francis Stephen Ruddy, “Res nullius and occupation in Roman and international law,” U. Missouri-Kansas City L. Rev. 36 (1968): 274-287.]

Archived comments:

Comments (1)

• Brainpolice
• “Perhaps as a default rule this is reasonable–the nature of the long-term ownership of real property may require that we not presume abandonment unless a long time passes, in the absence of clear evidence; but what if the owner explicitly abandons the property? Why does it need to take 10 years for this to have effect?”And, indeed, nothing about this position is particularly different from the position of the free market mutualists. It isn’t about an officially set timeline, it’s about explicit or qualatative abandonment.

• Published: August 3, 2009 11:31 PM