RESTRICTIONS IN OWNERSHIP RELATED TO RIGHTS OF NEIGHBOURS IN ROMAN LAW

Abstract

Romans left us numerous legal institutes which are still used in almost unchanged form. One of them is certainly the institute of ownership which in the classical period was understood as plena in re potestas. Even then, the ownership was considered to be an absolute right only within the boundaries restricted by a certain system of positive law. Very early, in the period of adopting its first codification, the Law of Twelve Tables, the Romans established the restrictions in ownership which fall in domain of so called rights of neighbours. Thus, they set the rules related to determining the borders between neighbours’ land, the rules that you have to put up with water flows if they represent a natural course, the right ofthe tree owner togo to his neighbour’s yard and pick up the fruits that fell of the tree, etc. The restrictions in ownership were not confined to the countryside, but could also be found in cities (for example it was forbidden to let the smellgo outside the shop in which cheese was made). They also had rules related to having and maintaining a joint bordering wall.

Serbia was the fourth country which passed the civil codification in the form of the Serbian Civil Code of 1844. The rules from this Code are still applied due to the absence of positive laws based on the Law on invalidity of legal regulations adopted before April 6, 1941 and during the enemy’s occupation. It was not before 2006 that a draft of Law on ownership and other property rights was made. This draft includes the provisions related to land borders, fences, tree branches overhaging neigbour’s yard, tree roots invading the neighbour’s land, neighbour’s water well, etc. Of course, it includes many new provisions from contemporary times, but it is interesting to compare the rules of classical and modern times and determine wath rules have survived the centuries.