International University of Sarajevo

Roman Law

Research paper

Definition and Classification of Res

Professor Student

Benjamina Karić Lamija Beširović

Introduction

To start off, it is imperative to understand concepts from Roman law due to them

being the common foundation upon which the European legal order is built. Furthermore, a

concept of such importance is the idea of Res as well as the law governing it. Originally, the

term “Res” referred to a, for the lack of a better term, “thing”. Later, however, it came to be

known as “property” instead. As such, ius in re (the law of Res), alongside obligatory law and

inheritance law, form a group of property rights. In accordance, ius in re is a set of legal rules

which govern and regulate legal relations between people in relation to things.1

Ius in re follows a certain thing no matter in whose possession that thing is. Notably,

it also orders all third parties a certain negative attitude towards the authorised person

because it contains a negative request that third parties should not interfere with the

authorised person in the exercise of his rights in relation to the thing he possesses.

Finally, ius in re authorise use and exploitation of things either in full or partly. The

most important and the most comprehensive ius in re is the right of ownership. In other

words, only the person who completely and exclusively owns a certain thing can use and

dispose of it indefinitely at will. On the other hand, all other rights in this regard are rights to

someone else’s property where the authorised person may use someone else’s property only

in a certain, precisely defined, and limited way.

1
Legal relations can only exist between people, and thus, they cannot exist between people and things. In
accordance, legal relations are namely social relations. Moreover, legal norms of law in general determine the
relations between people by imposing certain rights and duties on them. These rights and duties may have things
as their subject - that is, they may regulate the question of who will use or dispose of things or how said things
will be used or disposed of. This relationship between people and things is always only factual. On the other
hand, relationships between people in regard to things are of a legal nature.
Definition and Classification of Res

Ius in res considers res to be spatially separated pieces of external nature. In this

sense, we speak of bodily things and, in principle, only they can be the object of ius in res. In

ancient times, the Romans considered only corporeal things as res. Alas, over time, this

material notion of things expanded among them to mean everything that can be the subject of

legal relations as well as everything that can belong to someone. Accordingly, in the period

between the end of the Republic and the beginning of the Empire, the distinction between

corporeal things (res corporales) and non-corporeal things (res incorporales) occurred. Gaius

considered as res corporales all of those things that could be touched2 while res incorporales

represented those things that could not be touched3. According to this division, we can

conclude how the Romans thought that only corporeal things could be objects of law whereas

incorporeal things are mostly identified with law itself. It is important to note that there is a

singular exception to this rule and that is the fact that Roman jurists equated the right of

ownership with the thing itself which is why it was considered as a “bodily thing” and not an

actual right.

Now, let us examine the classification of res in Roman law:

1. Res in commercio and res extra commercium - Not all things can be the object of

private property rights. Many things are exempt from private law transactions because

not only are they temporarily not in anyone’s property (res extra patrimonium or res

nullius), but many of such things cannot even become private property because they

are exempt from special provisions (res extra commercium).

The reasons why some things are res extra commercium can be twofold: humani iuris

and divini iuris.

a) Res extra commercium humani iuris were:

2
“Quae tangi possunt”
3
“Quae tangi non possunt”
 aa) Res communes omnium which were things like air, running water of public

rivers, the sea, etc. These things are necessary for physical life and as such are

intended for the common use of all people and not for private property.

bb) Res publicae (public things) were, according to the original understanding,

such things that are owned by the state and thus owned by all Roman people

(populus Romanus) and are, in accordance, exempt from private trade as long

as they serve public purposes. However, as the state and the municipalities

gained private fiscal capacity, there appeared economic property that fell

under private law (for example, appliances for street lighting, schools, etc.)

With that in mind, things considered as res extra commercium were only those

things that served immediate general use such as public roads, squares,

theatres, baths, harbours, public rivers, etc. The general use of the

aforementioned was protected by praetorian interdicts.

b) Res extra commercium divini iuris were:

aa) Res sacrae, that is, things that were dedicated to a special act of

consecration of the cult of gods, such as temples, altars, statues of gods, and

objects of worship.

bb) Res religiosae were considered to be things dedicated to the cult of the

deceased, among which were also graves of citizens and slaves.

cc) Res sanctae were the city walls and the city gates, as well as the land of the

border. In ancient times, cities and private land ownership were placed under

the protection of the gods, and the death penalty was imposed upon those who

climbed over the city wall instead of going through the main gate.

2. Res mancipi and res nec mancipi - This division was the oldest and thus considered as

the basic division of things. In classical times, res mancipi were deemed to be Italian lands
 and buildings, slaves, domestic working cattle for towing and carrying cargo such as

cattle, mules, horses, and donkeys, and the oldest four easements of roads and aquaducts

(iter, actus, via, and aquaeductus). All other things were res nec mancipi, especially small

cattle, various movables, money, and provincial lands.4 It is important to have in mind that

the legal difference between res mancipi and res nec mancipi consisted in the manner of

transferring ownership of them. To be more precise, res mancipi could be transferred to

another only by a solemn and formalistic act while res nec mancipi could be transferred

informally.

3. Res mobiles and res immobiles - Res mobiles are those things that can be moved from

one place to another without losing the essence of said things. This also includes things

that can move on their own such as slaves and animals. Res immobiles are those things that

cannot be moved like a piece of land with everything that has been built and planted on it.

Not only that but the owner of the land also owned the airspace above the ground as well

as the ground below the surface.

4. Res fungibiles and res non fungibiles - As res fungibiles we count those things that are

regularly determined in circulation only by the quantity of a genus which means that their

individuality is not important. In other words, each equal quantity of a certain thing is

identical and therefore replaceable by another equal quantity of that thing. The Romans

referred to the aforementioned as “res quae pondere, numero, mensura constant” because

they were usually determined either by weighing, counting, or measuring. On the other

hand, res non fungibiles are those things that come into consideration in trade because of

their individual characteristics. As such, they are determined individually as a species. As

an example, we can use a work of art. In this case, it is not the same if we get a certain

thing or another thing of the same kind.

4
Elephants and camels, although used for work in Gaius’ time, were not res mancipi because the Romans did
not know that they existed.
5. Res consumptibles and res non consumptibles - They differ according to whether they

are destroyed by their first regular use (“res quae primo usu consumuntru”) or not.

Consumer goods such as grain, wine, and even money belong to the above-mentioned

category. Justinian also introduced a third category of things that only get worse with use

(“res quae usu minuuntur”). According to natural Roman principles, all things are subject

to either faster or slower wear and tear.

6. Divisible and indivisible things - By natural properties, all things are divisible to the

tiniest physical parts. However, according to economic and social criteria, not all things

are divisible because physical division would mean destruction. For an example, slaves

and animals go in this category. In accordance, the parts should continue to fulfil the same

economic and social function as the whole.

7. Simple, composed and grouped things - These divisions are also based on economic and

social criteria instead of the natural properties of things because, by their chemical

composition, all things except natural elements are composed. Henceforth, Roman jurists

distinguished three kinds of things:

a) Simple things are those that, according to the common understanding of life, form

unity. An example would be a slave, an animal, or a plant.

b) Composed things are those created by merging simple or independent things into a

new whole such as a building, a ship, or a closet. These things become an integral part

of the new whole and therefore they, although in this new whole they can be

distinguished, lose their independence and cease to be independent objects of law.

This is so because, while this connection lasts, only this new whole is considered an

object of law.
 c) Grouped things consist of those things that are not materially connected and thus each

thing retains its independence even though it is still interconnected by its common

function.

8. Main thing and its affiliations (pertinences) - A pertinence is, according to today’s

understanding, a bodily independent thing which is determined to to permanently serve the

economic purposes of some other, main thing. It is an incidental thing (“accessorium”) to the

main thing even though it is not physically connected to it nor is it an integral part of it. For

example, keys are considered the pertinence of the lock, the bow is the pertinence of the

violin, and cattle, weapons, and agricultural products are the pertinence of the agricultural

property.

9. Fruitful things and fruits - Some things are useful to people not only in themselves but also

in their nature. These are fruitful things and their yield is called fruit. We differentiate fructus

naturales and fructus civiles.

a) Fructus naturales are natural fruits and products. Things like grain or actual fruit

belong here.

b) Fructus civiles are revenues derived from some things through legal transactions such

as rent, lease, or interest rate. Here, the notion of fruit has already expanded from its

original meaning of the product to the meaning of economic income.