CLH TOPIC THREE: THE

TRANSFER OF OWNERSHIP II
(abstract vs causal
conveyance)
1. Roman law
a. the meaning of abstract and causal
conveyance: note that this is not Roman
terminology
b. The meaning of iusta causa in classical
traditio
Contrast Ulpian in D 12.1.18 with Julian in
D 41.1.36.

Three cases:
a. X thinks he is transferring a chariot in
pursuance of a sale but Y thinks he is
receiving it as a gift.
b. X and Y subjectively agree on an
underlying reason for the transfer, e.g. a
sale, but this purpose is objectively
defective, e.g. because the sale is invalid
by statute regulating chariot sales.
c. X thinks he is discharging a stipulatory
debt, and there is indeed such a debt, but
Y thinks he is receiving the chariot as a
gift.

Three views of causa:

1. If a causa is an objectively valid transaction,
such as a sale, then ownership will pass in
case c but not in cases a or b.
2. If causa is a subjective agreement between
the parties as to the objective reason for
transferring ownership, then ownership
would pass in case b, but not in case a or
case c.
3. Alternatively we could require only that the
parties intend to transfer and receive
ownership of the thing.
In that case
ownership passes in all three cases.

The position in classical Roman law? Traditio

probably causal in the first sense.
But note the confusion in Justinians Digest,
possibly due to interpolation of the classical
sources by the Compilers.