Dimitar Gelev, PhD1

Abstract: As distinct from ownership as an absolute, erga omnes power over a thing,

Roman law recognizes various other forms of land “possession”. At that time, private ownership

of urban and rural lands was rare. The basic regime for agricultural land was emphyteusis, while

the basic regime for urban (city) land was superficies (as urban variant of emphyteusis).

This article deals with these institutions.

Keywords: emphyteusis, superficies, limited real rights, lease, permanent quitrent, locatio

conductio, actio utile, equity, Ptolemy Philadelphus, Theodosius Code

1
Dimitar Gelev, PhD – Professor at the Department of Business Law and Economics, Faculty of Law “Iustinianus
Primus”, University “Ss. Cyril and Methodius”, Skopje, Republic of Macedonia.

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 Emphyteusis (Pronia or Pronoia) – permanent quitrent

As distinct from ownership as an absolute, erga omnes power over a thing, Roman law

recognizes various other forms of land “possession”. At that time, private ownership of urban and

rural lands was rare. The basic regime for agricultural land was emphyteusis, while the basic

regime for urban (city) land was superficies (as urban variant of emphyteusis).

Emphyteusis is perhaps one of the oldest institutions known to Roman law. Different

documents from the time of Ptolemy Dynasty are especially relevant for its early examination. Not

only different papyruses available from different Egyptian nomas, but also document of a kind of

the Revenue Laws of Ptolemy Philadelph.2 A large part of these regulations directly relate to this

institution, although at that time leases were made on an annual basis and therefore it is assumed

that a long-term or permanent lease occurred later on. But the aim of the tax machinery of that

time, as well as of services linked to land registration, was kept in subsequent laws. That is why

the rules of emphyteusis of the Theodosian Code could not at all be comprehended if the

documents from the time of Prolemys were not taken into account.

Emphyteusis is more frequently mentioned in the Theodosian Code than in the Justinian’s

Institutes.3 Although it was not defined in the Theodosius’ Code, its provisions lead us conclude

that emphyteusis was a long-term or permanent lease (with “permanent right”) under which a

lessee (called emphyteuta) was contractually obliged to work and improve the land for which he

paid a fixed rent (lease). Lease was inheritable and was cancelled only if the agreement was not

2
See Revenue Laws of Ptolemy Philadelphus, edited from a greek papyrus in the Bodlean Library, with a translation,
commentary and appendices by B.P.Grenfell, MA, Oxford,Clarendon Press,1896, as well as Oxyrhynchus Papyri, in
ther various issues.
3
See Clyde Pharr, Theresa Sherrer Davidson and Mary Brown Pharrr, The Theodosian Code and Novels and
Sirmondian Constitutions, The Lawbooks Exchange Ltd., 2001.

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respected (for breach of agreement). It usually implied that the rent had not been paid for 3 years

or the standard of good pater familias (householder) conduct was disrespected. Emphyteusis was

a regular type of lease of land that belonged to the emperor or the state, but they were also

concluded by private persons. The Theodosian Code deals with emphyteusis in the context of rent

payment or in the so-called tax context. In this regard, the Code may be considered a follow-up to

the tradition of the Revenue Laws of Ptolemy Philadelphus. All persons who had land in

emphyteusis paid rent to the authorized tax collector of the empire. Although the Code contains

numerous provisions on annual rent payment and guarantees for peaceful enjoyment of the land,

it generally does not contain a legal definition of this institution, but regulates it as “a widely

known matter”. This prompts us to conclude that it had been well-known much before that time.

In order to understand the institution and its meaning at that time, we have to provide a few

notes. Let us imagine that there is no large number of persons in the state who own land privately

and that land is predominantly in public ownership (res publicus). The original concept of res

publicus, whose traces are found in the Justinian work, is that it is available to all and that anyone

can use it. This concept is best reflected in Book II, Chapter 1 of the Justinian’s Institutes:”

“1. By the law of nature these things are common to mankind – the air, running water, the

sea, and consequently the shores of the sea. No one, therefore is forbidden to approach the seashore

provided that he respects habitations, monuments and buildings, which are not, like the sea, subject

only to the law of nations. 2. All rivers and ports are public; hence the right of fishing in a port or

in rivers, is common to all man. 3. Sea-shore extends as far as a greatest winter flood runs up. 4.

The public use of banks of a river is part of the law of nations, just as is that of the river itself. All

persons therefore are as much at liberty to bring their vessels to the bank, to fasten ropes to the

trees growing there and to place any part of their cargo there, as to navigate the river itself. But the

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banks of a river are the property of those whose land they adjoin; and consequently the trees

growing on them are also the property of the same persons. 5. The public use of the sea-shore, too,

is part of the law of nations, as is that of the sea itself; and therefore any person is at liberty to

place on it a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea;

for the shores may be said to be the property of no man, but are subject to the same law as the sea

itself, and the sand or ground beneath it.”

The above-presented indicates that goods common to all humanity and goods in public

ownership are in general use, but if they are fit for occupation and if they are free they may be

occupied. Such occupation does not relate to navigation and fishery right, but certainly does to

sea-shore or river bank. This occupation did not lead to private ownership, but only to bonitary

possession, because all these things were in fact res nullius. Such usurpation was certainly chaotic

and probably resembled the situation we saw in some Western movies at the time of settlement in

America. The entire situation ends at the time of Ptolemy Soter. He proclaims all these goods (in

particular res publica) as public (state) property and any kind of use requires state permit (with or

without compensation). Order in distribution and occupation of publicly owned goods and

specifically of land was thus introduced for the first time. This led to the creation of state services

tasked with for instance land survey and establishment of the first land books and cadasters.

Documents of his time illustrate development and creation of various services linked to survey,

registration and taxation of land. Public property was still in general use but if awarded to someone

it was withdrawn from the general use regime, although it could continue to be a public property

(res publica). At the time of Ptolemy Soter the terms “public property” and “general use by all”

were separated, that is to say these two were no longer necessarily connected. The property of the

state or of the emperor (a smaller part) became an integral part of the state fiscus or treasury (assets

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side of the state) and that property was given to the population as a long-term lease. For the sake

of easier administration in towns i.e. in urban areas, the fiscus gave land in emphyteusis to town

or municipal authorities, organized as corporations (legal persons or universitas personam), which

on their part gave it to the population as a long-term lease (superficies). In rural areas or

countryside where there were no municipal corporations, the fiscus awarded land directly. For the

granted land, the emphyteuta (lessee) paid lease or rent, which was named differently in different

periods. For example, in the Theodosian Code it was called annona, in the Justinian’s Institute it

was called pension (pensio), while the Digests use the term vectigal for rent. But when a large part

of the population cultivates and lives on the land in emphyteusis, the problem of collecting rent

appeared. That task was given to special persons who were named differently, but a general term

was tax-collector. Tax collectors in rural areas were called farming tax collectors. They acquired

that position in public bidding at which the amounts of taxes to be collected were offered and the

one who offered the largest amount won (for which he later had unlimited liability). A person that

became a tax collector was also given land in emphyteusis and had a privilege of not paying rent

for it (i.e. was exempt from rent on account of performing an important state function). In different

periods members of municipal councils were forbidden to be tax collectors and even to possess

land in emphyteusis. In addition to emphyteutic rent, these tax collectors were tasked with

collecting other taxes and fees (for commercial transactions, what today are considered customs

duties etc.) and generally represented the structure of tax and customs administration in the

country. There is abundance of evidence that Ptolemy took over this mechanism from the Egyptian

patterns.

In rural areas rent was collected by farming tax collectors whereas in urban areas it was

performed by a municipal corporation. When a municipality was big, the corporation itself

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transferred rent collection to tax collectors who then transferred the collected income to the

municipal corporation. A certain percentage of the collected taxes and rent was kept and the rest

was given to the state fiscus. For example, the Theodosian Code prescribes that the town has the

right to keep one third of the collected income for the maintenance and repair of town walls. In

rural area this ratio was one fourth.

All persons who had land in emphyteusis were called publiciani in the Theodosian Code

and the Justinian’s Institutes because they rented res publicum (public property). They held it in

bonis, without the right to usucapio (usucaption or adverse possession). The term tax collector is

also found in the New Testimony where they are also referred to as tax or customs officers.

This system of emphyteusis (long-term land lease) and the system of tax collection by town

(municipal) corporations or by tax-collectors were maintained during the entire Byzantine

existence.

Contrary to the Theodosian Code, which treats emphyteusis only in the context of rent

collection (i.e. tax system) and does not provide its legal definition, the Justinian’s Institutes are

more precise. Book III, Chapter XXIV, paragraph 3 states:

“3. Contracts of sale and letting to hire are so nearly connected, that in some cases that is

questioned whether the contract is one or the other. For instance, when lands are delivered over to

be enjoyed forever, that is, that as long as the rent is paid for the land to the owner, he cannot take

away the land from the hirer or his heir, or any one to whom the hirer or his heir has sold, or given,

or made a dowry of the land. As the ancients were in doubt as to this contract, some regarding it

as a letting to hire, and some as a sale, the constitution of Zeno was made, which declared that the

contract of emphyteusis was of a special nature, and was not to be confounded either with letting

to hire or with sale, but rested upon its own peculiar agreements; and that if any special agreement

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was made, it was to be observed as if to have such an agreement was part of the nature of the

contract; but if no agreement was made as to the risk the thing might undergo, the risk of a total

loss should fall upon the owner, and the detriment of partial loss upon the occupier; and this we

still wish to be considered the law.” (Book III, Chapter XXIV, 3).4

In contrast to today’s interpretations of Roman emphyteusis as a property right or a type of

servitude (jura in re aliena), it was not that. Emphyteusis is regulated in the part devoted to

contracts (obligations) and was treated as such, as an obligation agreement, with more resemblance

to lease (locatio conductio rei), than to property rights. With minor exception, all rules applicable

to lease (locatio conductio) applied to emphyteusis which was defined as permanent lease. It

maintained such a status during the entire Byzantine era. What made emphyteusis different from

an ordinary lease contract (locatio conductio rei) was not its property legal nature but the

possibility for the lessee (emphyteuta) “to dispose of his land” (“to sell, bestow it or give it into

dowry“), as if he owned it although he did not. This position was built in Roman law on the basis

of special interdicts or user’s lawsuits (actio utile), mainly based on the presumptions for

acquisition of ownership (superficies solo cedit).5

With the help of these lawsuits and interdicts, on the basis of different fictions the praetors

built a position on grounds of which the emphyteuta could defend the leased good as long as he

regularly paid the rent. So as long as the rent was paid the emphyteuta enjoyed the fictitious

position of owner and possessor of a thing based on the praetorian rules on equity. These lawsuits

were not based on law but on justice and were conducted analogously to the existing lawsuits and

4
Legal remedies available to a leasee were personal lawsuit action conducti, and to a leasor action locate and property
lawsuit action Serviana by which he could confiscate farming tools of a lease located on the land if he did not pay a
rent and could request interdictum Salvianum by which he confiscated things given as security for rent payment.
5
Contrary to the time of Ptolemy when rent was as a rule annual, until the time of Justinian it became “permanent”. It
was this qualification that led to creation of emphithesis, as a special sort of lease which created permanent relations
and a special position for emphiteut as long as rent was paid.

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interdicts. For example, if an owner was entitled to rei vindicatio, analogously an emphyteuta was

entitled to rei vindicatio utilis.

There was a difference between direct lawsuits (actio directa) and lawsuits for use (actio

utilis). Direct lawsuits were based on laws, while actio utilis was created by a praetor. They were

not based on a legal text, but were expanding on a legal lawsuits on the principle of equity, when

a praetor allowed a lawsuit to be instituted in circumstances resembling those contained in the

laws although not identical with them. The constructiveness of praetors was to be found in this

sphere. The existing legal actions frequently could not be applied to a large number of factual

situations, but a praetor could shape a suit applicable (utilis) to a concrete situation, through

fictions (actions fictitiae) or through formulas based on the factual situation of the case (in factum

concepta). The nature of actio utilis always resembled the original direct lawsuit or interdict by

analogy to which it was designed.

The state or the emperor was most frequently the owner of the land given in emphyteusis.

They soon realized that if they had to appear in court for all possible disputes linked to the land

given in emphyteusis on the basis of their ownership and possession, it would be extremely

demanding and expensive. That is why they created a fiction that as long as they paid a rent,

emphyteutas had to deal with their problems on their own. The state was not the least interested

who the lessee of its lot was as long as the rent was paid. It intervened only if the rent was not

paid. This led to the application of actio utilis and of praetor’s interdicts in order to create a fiction

that an emphyteuta was a fictitious possessor and owner during emphyteusis and he paid a rent.

That is why he acquired a right to fictitiously “sell, bestow or give in dowry” and the state did not

intervene as long as his “legal successor “continued to pay a rent (pensio).6

6
Right to usufruct could be sold (transferred), bestowed or sub-leased, whereas locatio conductio rights could be
inherited, that is to say were transferred to leasee’s heirs. Since the lease acquired contractual rights to use and usufruct,

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 The Justinian’s Institutes show well how utilis actio functioned:”

“If a person has painted on the tablet of another, some think that the tablet accedes to the

picture, others, that the picture, of whatever quality it may be, accedes to the tablet. It seems to us

the better opinion, that the tablets should accede to the picture; for it is ridiculous that a painting

of Apelles or Parrhasius should be but that accessory of a thoroughly worthless tablet. But if the

owner of the tablet is in possession of the picture, the painter, should he claim it from him, but

refuse to pay the value of the tablet, may be repelled by an exception of dolus malus. If the painter

is in possession of the picture, the law permits the owner of the tablet to bring a utilis action against

him; and in this case, if the owner of the tablet does not pay the cost of the picture, he may also be

repelled by an exception of dolus malus; that is, if the painter obtained possession bona fide. If the

tablet has been stolen, whether by the painter or anyone else, the owner of the tablet may bring an

action of theft.”7

This paragraph illustrates the position of emphyteuta. If we place the state or the emperor

in a position of a painter who is by law an owner of the painting, and an emphyteuta is placed in a

position of an owner of a tablet (which is worthless) we may by analogy conclude what his rights

are. Actio utile creates a position for him “as if he were the owner of the painting” although he is

not.

he analougolsy built his position. That led to more favourable position of emphiteut compared to holders of limited
property rights. For example, usufruct ceased with the death of usufruct holder, what was not the case with emphithesis
that was inheritable. Similarly to usufruct, a person used a thing as long as the essence of that thing is maintained. If
a person held usufruct in respect of a building, his right ceases if a building was demolished or destroyed in fire, that
is to say if destroyed as a thing. But this was not the case with emphithesis or superficies because their right did not
relate to crops or a building, but the lease related to the land itself, which in principle always kept its essence. That is
why if a building was demolished, a leasee had the right to build another one as long as the lease was valid. In case of
usufruct, if a usufruct holder dies, his heirs could not collect fruits although ripe if they had not been already collected,
and consequently they belonged to the owner. In case of emphithesis, pruits would be collected by heirs, because a
lease was maintained by heirs.
7
Thomas Collett Sandars, Institutes of Justinian, Callaghan & Company, Chicago, 1876, Book II, Chapter 1, Articles
33 and 34, page 177. The word emphithesis itself means “to plant something” (tree, plant etc.)

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 Or a better example for emphyteusis is planting a tree or a plant in somebody else’s land:

“If Titius places another man’s plant in ground belonging to himself, the plant will belong

to Titius: on the contrary, if Titius places his own plant in the ground of Maevius, the plant will

belong to Maevius – that is, if, in either case the plant has taken root, it remains the property of its

former owner. But from the time it has taken root, the property in it is changed.”8

As we may see, the given examples relate to acquisition of property right in accordance

with “natural law”. These are the rules applicable for emphyteusis as well. Following on the

superficies solo cedit principle, everything planted on the land (when rooted) becomes property of

the owner of the land. The owner of crops is entitled to compensation in case of dispute (through

actio utilis).

When an owner gives a property right of the land he owns to somebody else (usus or

ususfructus), there must have been trees, plants or buildings on it given for use or usufruct. In case

of lease or emphyteusis, there is only a contractual transfer of a right to use and/or usufruct, but a

lessee or emphyteuta is the one who plants trees or crops or constructs a building. Actio utilis are

provided for them to ensure justice because according to the rules of natural law, legal

presumptions for such “petty things” were in favor of the land owner (superficies solo cedit).

All this shows that emphyteusis was not a property right at all, neither that emphyteuta had

quasi-possession in the sense of jura in re aliena. A contract remains to be an obligation contract

with all related consequences. Simply said, no one could acquire ownership of res publica. With

actio utile and with the help of various interdicts, an emphyteuta was protected from theft, forceful

expulsion from the land, but in no case whatsoever did he become an owner or quasi-possessor,

that is to say he did not have any sort of property right. It is true that he could create mortgage, sell

8
Ibid, Article 31, page 176.

10

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or bestow, but all the acquirers on any grounds were aware that the lease would last as long as the

rent was paid. When it ceases all fiction about “ownership” and “possession” will disappear. That

“ownership” and “possession” related to a part of the goods which could be requested with actio

utile.

Under Roman law, the land owner was the only one said to have possession of that thing.

If he wanted to give someone the right to use (usus) or usufruct (ususfructus) as property rights

(jura in re aliena), he could do so. But that was not emphyteusis. It was a simple lease (locatio

conductio rei) and all rules for that type of agreement were applied to it. When an owner leased a

land to someone, he continued to be its owner and possessor. Every lease, even the most ordinary

locatio conduction entitled the lessee to use or to use and usufruct (much later European civil law

codes made a difference between ordinary lease with a right to use and usufruct lease, a distinction

not so important in Roman law). But this right is not a property right (in the sense of jura in re

aliena, i.e. servitude), but the right ensuing from a contract or contract law. In case of farming

leases, a lessee acquired a right to plant and collect fruits, in case of superficies (urban leases) to

live or to construct and leave in a building (the same as if he planted a tree or grains), i.e. he

acquired rights all leasees are entitled to – use and usufruct, but as contractual rights.

In Roman law every lease was inheritable. The Justinian’s Institutes state: “If the hirer dies

during the time of his hiring, his heir succeeds to all the rights given him by the contract”. This

was certainly applicable to emphyteusis, moreover because it was defined as “permanent lease”.

A mere fact that a contact allowed for a replacement of a contracting party (by an heir) explains

in simple terms the fact the land in emphyteusis could be “sold, bestowed or given in dowry“. It

was done only if the acquirer obligated himself to step into the lease’s shoes taking upon him all

contractual obligations. This is not about a transfer of a property right through inheritance,

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purchase, gift or alike (as in case of usufruct), but only about the ways in which another person

may become a lessee instead of the existing conductor, that is to say become “another contracting

party”. “Inheritance“, “sale“, “gift“ etc. do not relate to the right to ownership or to possession of

the land which continue to belong to the owner, but only to “contractual rights” or to the ownership

of the lessee in regard to the value of the land for which he is entitled compensation (value of

improvements). Similarly to the examples for original acquisition of property. What is actually

sold is not land but its “improvements” (crops or buildings) what places a new lessee in the same

position as the owner of a tablet in the given example of the artistic painting. As for the ordinary

lease, the sale of the thing by the owner to some buyer in principle led to a contract termination.

But when it comes to emphyteusis, the state and emperors guaranteed that such situations would

not occur since it was public or emperor’s property.

Due to the application of property law rules, all “planted or built” on a land by a lessee

became in principle the property of a lessor, that is to say of the land owner. But since he gave a

right to use and and/or usufruct by a contract, it was not problematic as long as the lease lasted.

Problems arose in the event of the contract termination or lease expiration. In such a case, a lessor

was supposed to compensate a lessee all costs for improvements of a thing (land). Irrespective of

the fact whether it is about long-term (multi-year) crops or buildings, refusal by a lessor to

compensate the costs if he requested things for himself led to dolus malus. And vice versa, such

dolus malus goes for a lessee if he planted or built something on the land despite the fact that he

had no legal grounds to do so (for instance, he had no lease contract or emphyteusis) and

consciously planted or built on somebody else’s land (example: today’s illegal buildings).

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 A similar variation is derived in UK law with a distinction between legal owner and equity

owner. The equity itself was largely based on praetorian powers.9

During the Byzantine empire emphyteusis started to be called pronia (pronoia), specifically

a long-term lease of tax collectors. Due to various misuses and evasion of rent payment, the state

rather frequently (particularly in times of crisis) appointed soldiers or “violent individuals” on

positions of tax collectors, those who had a power to enforce rent payment by a large portion of

population who leased the land, especially in rebellious provinces. That is why certain authors

dealing with the Byzantine history concluded that pronoiarios represented “military aristocracy”

in the empire, although that was not the case.10 Pronoia maintained all the above-mentioned

characteristics and irrespective of the fictions created by actio utilis, it basically remained to be

regulated under rules of obligations. Therefore, the works in which it is classified as part of

property legal categories are fully erroneous as this institution is viewed through the prism of its

transformation in the Western type of feudalism.

The position of emphyteusis in Western feudalism changed due to property fragmentation.

As distinct from Roman and Byzantine law which do not recognize possession or quasi-possession

of land to emphyteuta because they adhered to the position that it is an obligation, (i.e. contractual

rights and obligations) and not a property right, things changed in the Western feudalism and a

lessee was treated as a holder of property right i.e. of possession. But Western Feudalism was quite

different.

9
For example, by investing a share in the company a shareholder loses legal ownership of it and from that moment it
becomes legal property of a company as a legal entity, while a shareholeder has an equity, but as a contractual right
resulting from subscription contract.
10
For example, see Георгије Острогорски, Пронија, Прилог историји феудализма у Византији и у
јужнословенским земљама, Српска Академија Наука, Посебна издавања, књига CLXXVI, Византолошки
институт, књига 1, Београд, 1951 or Marc C. Bartusis, Land and Privilege in Byzantium: The Institutium of Pronoia,
Cambridge University Press, 2013.

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 As we have already mentioned, Roman law made a distinction between direct lawsuits

(actio directa) and actio utilis. Actio utilis was used in cases interpreted by analogy to those

foreseen by direct lawsuits. Therefore actio utilis was a lawsuit a praetor (later eparch or today’s

American secretary of state) allowed to persons not holding rights in respect of other persons’

property, by analogy to direct lawsuits allowed only to the owner of that thing. Western feudalism,

starting from the Glossators, began to transfer names of these lawsuits to rights being protected

and by naming the two rights “dominium“. The Glossators invented the term “beneficiary title”

or “beneficiary and user ownership“ (dominium utilis) to designate a right of a person in respect

of somebody else’s land, specifically in the case of emphyteusis, and the term “nude” or “direct

ownership” to designate the right of the true owner (i.e. property right). It is true that some kind of

grounds for this may be derived from the Institutes of Gaius, but this is a result of imagination

going much beyond that. Western feudalism in a way recognized possession and some kind of

ownership of persons with dominium utile, which was not the case during the entire Byzantine

empire, which obeyed by the Justinian’s Institutes until the very end. Byzantines never recognized

fragmentation of ownership (dominium) in jura in re aliena, which is clearly demonstrated by the

term itself (right to somebody else’s things - jura in re aliena). That fact was understood by a large

number of Glossators (Donelius, Cujas etc.) and they pointed to illogicality of the opposite

approach. If a person that has only a limited property right in respect of somebody else's thing or

brought a thing to somebody else’s land (crops, construction materials and buildings), declares

himself an owner, the other person who is a real owner, now in a position of co-owner, could not

dispose of a thing without consent of the former person, which was quite illogical.11

11
See Carlo Calisse, A History of Italian Law, Rothman Reprints Inc. South Hackensack, New Jersey, 1969, pages
717 to 735.

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 Emphyteusis is today known in France and the Netherlands, but is treated more as a

property right rather than an obligation.

Superficies

Today’s western textbooks define superficies as a right to build on somebody else’s land

or more precisely right to permanent enjoyment of what was built on somebody else’s land, under

condition an annual rent (pensio, cannon) is paid. In essence, superficies is emphyteusis given in

urban areas. Instead of a land lessee planting crops, he in this case “plants” a building. As in case

of any lease, a lessee acquires a contractual right to use and usufruct and therefore it is only normal

that in rural areas he plants crops and in urban to construct a house, which is identical in the legal

context. Rather similarly to emphyteusis, superficies was not treated as a property right. The

position of Roman law was clearly expressed in the Institutes in the following manner:

“On the contrary, if any one builds with his own materials on the ground of another, the

building becomes the property of him to whom the ground belongs. But in this case the owner of

the materials loses his property, because he is presumed to have voluntarily parted with them, that

is, if he knew he was building upon another’s land: and, therefore, if the building should be

destroyed, he cannot, even then, reclaim the materials. Of course, if the person who builds is in

possession of the soil, and the owner of the soil claims the building, but refuses to pay the price of

the materials and the wages of the workmen, the owner may be repelled by an exception of dolus

malus, provided the builder was in possession bona fide. For if he knew that he was not the owner

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of the soil, it may be said against him that he was wrong to build on ground which he knew to be

the property of another.”12

This example taken from the Justinian’s Institutes is extremely relevant for the notion of

superficies. When a person builds on somebody else’s land using his own materials, a large number

of variations are possible, depending on the fact whether that person is in legal possession of the

land or not, or whether he is acting in good faith or not. If a person was aware that he was building

on somebody else’s land he was using without any legal grounds, he loses ownership of materials,

even if a building was demolished, because his negligent action was punished in that manner. If a

person was in possession of the land on some legal grounds (for instance, emphyteusis or

superficies) and acted in good faith, that is to say was aware that the land belonged to somebody

else, then he is entitled to request compensation for the value of materials and workers’ pay, that

is to say increased value of the land. The owner had two options, either to take a building and pay

for materials and wages or to allow a builder to take away all the materials. A person with a

superficies right was not considered a possessor or quasi-possessor and therefore he regulated all

relations with the owner in a superficies contract.

What in fact emphyteusis was for farming land, superficies was in urban areas. Whether a

tree or another plant (to take root) was planted on the land or you “plant” i.e. construct a building

(to take a foundation) was all the same for Roman law. The fundamental principle that addings

(accessories) follow the destiny of the land (superficies solo cedit) continued to be completely

relevant. The entire system of rent collection through tax collectors remained the same. The state

or the emperor gives land in emphyteusis or in pronoia to municipal corporations or to some guild,

12
ibid, Article 30, pages 174-175. This basic presumption is specifically relevant for today’s position in regard to the
so-called “illegal building”, which represents a legally sanctioned theft of state property and of violence of different
types.

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they give it in superficies in case of urban environments. In this case, a lessee (superficiarius) did

not plant grains, trees or other crops but erected a building (construction).The same as in the case

of emphyteusis, a superficiary could mortgage a building, create servitudes etc. but the entire

magic of fictitious ownership ceased when the rent was not paid. Superficies was also protected

with actio utilis (for example, reivindicatio utilis) or with interdicts. A special superficies interdict

was created to avoid forceful seizure of “possession”13

In the same manner as in the case of emphyteusis, Western feudalism creates a difference

between dominium directum and dominium utile, thus making superficies a property right, what it

was not in the Roman legal rules system, and even ownership of a building as a property right

independent from land ownership. In this regard, equity ownership in common law is much more

correct than civil law variations of “property rights”.

Today a large part of civil law systems in Western Europe consider that superficies

provides a right to ownership of a building different from land ownership. For example, the

German regulation Verordnunguber das Erbbaurecht (Erbbau VO) prescribes: “(1) A land lot may

be burdened in a way that a person for whose benefit a property right was created acquires

transferable and inheritable right to have a building above and below the land surface”, whereas

the Dutch Civil Code prescribes: “5:101 (1) Superficies right is a property right to have or acquire

ownership in or over buildings, constructions or crops (plants) on an immovable good belonging

to someone else.” Although the French system does not contain explicit provision on superficies,

the French Supreme Court allows it as a “property right”, established in a contract. Such an

interpretation of this institution is beyond doubt a result of Western feudalism and is completely

strange to the interpretation of Roman law. After initial refusal to regulate it in their civil codes,

1. 13
Alan Watson, The Digest of Justinian (2 Volume set), University of Pennsilvania Press, 1997, D.43, 13, p. 1).
Gaius adds that a building is a property of the land owner under both natural and civil law.

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as remnant of feudalism, the mentioned systems later on include both emphyteusis and superficies

in their legal systems, but as property rights.14 In that manner the presumption of original

acquisition of property as foreseen in the Justinian’s Institutes was ruined.

Habitatio (Right to housing)

The only property right known to Roman law in this sphere is right to housing (habitatio).

Although it was a variation of the right to use (usus) it was yet treated as a special servitude (jura

in re aliena), most likely because of the frequency of its application. This right is regulated in

Book II, Chapter V of the Justinian’s Institutes, along with the right to use (Chapter V - De usu et

habitatione). The relevant parts of the Institutes are given bellow:

“The naked use is constituted by the same means as the usufruct; and is terminated by the

same means that makes usufruct to cease.15

1. The right to use is less extensive than that of usufruct; for he who has the naked use of

lands, has nothing more than the right of taking herbs, fruit, flowers, hay, straw and wood sufficient

for his daily supply. He is permitted to establish himself upon the land so long as he neither annoys

the owner, nor hinders those who are engaged in the cultivation of the soil. He cannot let, or sell,

or give gratuitously his right to another, while a usufructuary may.

2. He who has a use of a house, has nothing more than the right of inhabiting it himself;

for he cannot transfer this right to another; and it is not without considerable doubt that it has been

thought allowable that he should receive a guest in the house, but he may live in it with his wife

and children, and freedmen and other free persons who may be attached to his service no less than

14
Sjef van Erp and Bram Akkermans, Casses, Materials and Text on Property Law, (Ius Commune Casebooks for the
Common Law of Europe), Hart Publishing, 2012, pages 280-285.
15
One should pay attention to the term nudus usus expoited here for servitudes use (usus) which will later on in
feudalism be transformed into a reverse presumption about “nude ownership” according to the usufruct examples.

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his slaves are. A wife, in the same way, if it is she who has the use of a house, may live in it with

her husband.

3. So, too, he who has a use of a slave has only a right of himself using the labor and

services of a slave: for he is not permitted in any way to transfer his right to another. And it is the

same with regard to beasts of burden.

4. If the use of a flock or herd, as for instance, of a flock of sheep, be given as a legacy, the

person who has the use cannot take the milk, the lambs or the wool, for these are among the fruits.

But he may certainly make use of the flock to manure his land.

5. If the right of habitation is given to any one, either as a legacy or in any other way, this

does not seem a use or a usufruct, but a right that stands as it were by itself. From a regard to what

is useful and conformably to an opinion of Marcellus, we have published a decision, by which we

have permitted those who have this right of habitation, not only themselves to inhabit the place

over which the right extends, but also to let to others the right of inhabiting it.”16

As we may see from the text, the Institutes make a distinction between ordinary right to

use of a house or an apartment (nudus usus) and the right to housing (habitatio). In principle the

content is the same (right to live in a house with a family and dependents), but a house in respect

of which there is a right to housing may be leased (locatio conductio rei), what is not the case with

the right to use.

The right to use a house and right to housing are listed as servitudes (jura in re aliena), and

therefore persons holding such a right are considered quasi-possessors (quasi-possessio) and

consequently they defend their rights with all legal remedies available to servitudes holders.

16
Thomas Collett Sandars, Institutes of Justinian, Callaghan & Company, Chicago, 1876, Book II, Chapter 5 (De usu
et habitatione), pages 200- 206.

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 The Roman solutions are based on the ways of acquisition of ownership in accordance

with natural law. They commence from certain presumptions they never depart from. An

adding follows the destiny of the land (superficies solo cedit), a painting belongs to a person who

painted it, a plant belongs to the owner of the land on which the plant took a root etc. On the basis

of these fundamental rules for determination of a subject the right to ownership belongs to, ways

are sought to provide “justice” to the other side. It is not important whether it is done through actio

utilis or in another way, but it is important that at no time did they depart from the basic

presumptions on which all rules are grounded and a lessee is never left unprotected.

As distinct from the Roman concept about numerus clausus, what means that property

rights and their contents were previously determined by law and could not individually vary and

change, in feudalism an obligation agreement on contents of a property right was a regular matter

(depending on a status of the other contracting party).

Conclusion

Although all legal systems have notions about possession, ownership, contracts etc., all

these notions are based on some previous concepts and classifications, what must always be taken

into consideration when coherence of a legal system is being assessed. Very often the differences

are not taken into consideration when US solutions are applied in civil law systems or when

“harmonization” of law within the EU is carried out. Therefore, it happens frequently that

something looking perfect as a legal text shows a variety of flaws when applied in practice. This

paper presents a number of Byzantine legal solutions that may help perceive some problems in a

different perspective.

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References:

1. Clyde Pharr, Theresa Sherrer Davidson and Mary Brown Pharrr, The Theodosian Code and

Novels and Sirmondian Constitutions, The Lawbooks Exchange Ltd., 2001

2. Revenue Laws of Ptolemy Philadelphus, edited from a greek papyrus in the Bodlean Library,

with a translation, commentary and appendices by B.P.Grenfell, MA, Oxford,Clarendon

Press,1896

3. Thomas Collett Sanders, Institutes of Justinian, Callaghan & Company, Chicago, 1876

4. Георгије Острогорски, Пронија, Прилог историји феудализма у Византији и у

јужнословенским земљама, Српска Академија Наука, Посебна издавања, књига

CLXXVI, Византолошки институт, књига 1, Београд, 1951

5. Marc C. Bartusis, Land and Privilege in Byzantium: The Institutium of Pronoia, Cambridge

University Press, 2013

6. Carlo Calisse, A History of Italian Law, Rothman Reprints Inc. South Hackensack, New Jersey,

1969

7. Gai, Institutiones or Institutes of Roman Law by Gaius, with a translation and

commentary by the late Edward Poste, M.A. Oxford, Clarendon Press, 1904

8. Sjef van Erp and Bram Akkermans, Casses, Materials and Text on Property Law, (Ius

Commune Casebooks for the Common Law of Europe), Hart Publishing, 2012

9. Alan Watson, The Digest of Justinian (2 Volume set), University of Pennsilvania Press,

1997

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