acquisition of other natural persons. This form of transfer can be characterized by
free will, and whether or not it is a sale, gift or bequest, it does not constitute
abandonment. On the contrary, an intentional abandonment would mean that the res
is free and clear for another person to exercise occupatio. In those situations, the
doctrine of res nullius
74 is commonly used to refer to an “ownerless res” that has
been abandoned by the true owner. While res has branched into a lot of ancillary
terms, e.g., res communes, res corporales, res divini juris, and res humani juris,
75
res nullius out of all res related doctrines can be marked as special in so far as it has
gained significant attention in scholarly writings, legal literature and judgments.
Those scholars, legal writers and judges have thoroughly examined the full particulars of res nullius to establish property claims as well as maritime claims by an
intermeddler by occupatio i.e., ownerless things that were susceptible to private
ownership. Even today, where there exists international controversy concerning
occupatio, res nullius and its conditions and legal affects are given important
consideration to determine ownership.
76 An insightful exposition of this important
doctrine is contained in the following passage from William Smith:
. . . The chief division of res is into res divini juris, and res humani juris. Res divini juris are
those which are appropriated to religious purposes, namely, res sacrae, sanctae, religiosae;
and so long as they have this character, they cannot be the objects of property. Res humani
juris are all other things that can be the objects of property; and they are either res publicae or
res privatae. Res publicae belong to the state, and can only become private property by being
deprived of this public character . . . Res universitatis are the property of a universitas, and
are not the property of any individual. The phrase res nullius is ambiguous; it sometimes
means that the thing cannot be the property of any individual, which is affirmed of things
divini juris; when applied to things humani juris, it sometimes means that they are not the
property of an individual but of a universitas; yet such things may become the property of an
individual; res hereditariae are res nullius until there is a heres. Res communes are those
which cannot be the objects of property, and therefore are res nullius, as the sea.
77
In the context of the doctrine of abandonment, effective occupatio can be
paraphrased or rephrased as de facto possession.
78 The active dominion aspect that
has been discussed earlier can be considered as a form of control or de facto
possession that satisfies all elements of possession in fact.
79 But whether or not it
74 Adeleye and Acquah-Dadzie (1999), p. 345 where res nullius has been defined as “[p]roperty
which belongs to nobody, whether because it has never been acquired or because its previous owner
has completely abandoned it, or because in the case of Roman law, it cannot be privately owned”.
75 Ibid. This book is an authority on res terminoligies and the res related terminologies in the text
have defined in the following manner: res communes—things which belong to the public, are used
by everyone and cannot be anybody’s private property; res corporales—things that can be
perceived by the senses; res divini juris—matters of divine right and matters of divine law; res
humani juris—matters of human law.
76 Macdonell (1899).
77 Smith (1859), p. 421.
78 Pollock and Wright (1888), p. 8.
79 Ibid. According to Pollock and Wright, if a thing or a property has been subject to effective
occupatio, there are a few questions that need to be answered: “a) of what kinds of physical control
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T. M. Johansson
free will, and whether or not it is a sale, gift or bequest, it does not constitute
abandonment. On the contrary, an intentional abandonment would mean that the res
is free and clear for another person to exercise occupatio. In those situations, the
doctrine of res nullius
74 is commonly used to refer to an “ownerless res” that has
been abandoned by the true owner. While res has branched into a lot of ancillary
terms, e.g., res communes, res corporales, res divini juris, and res humani juris,
75
res nullius out of all res related doctrines can be marked as special in so far as it has
gained significant attention in scholarly writings, legal literature and judgments.
Those scholars, legal writers and judges have thoroughly examined the full particulars of res nullius to establish property claims as well as maritime claims by an
intermeddler by occupatio i.e., ownerless things that were susceptible to private
ownership. Even today, where there exists international controversy concerning
occupatio, res nullius and its conditions and legal affects are given important
consideration to determine ownership.
76 An insightful exposition of this important
doctrine is contained in the following passage from William Smith:
. . . The chief division of res is into res divini juris, and res humani juris. Res divini juris are
those which are appropriated to religious purposes, namely, res sacrae, sanctae, religiosae;
and so long as they have this character, they cannot be the objects of property. Res humani
juris are all other things that can be the objects of property; and they are either res publicae or
res privatae. Res publicae belong to the state, and can only become private property by being
deprived of this public character . . . Res universitatis are the property of a universitas, and
are not the property of any individual. The phrase res nullius is ambiguous; it sometimes
means that the thing cannot be the property of any individual, which is affirmed of things
divini juris; when applied to things humani juris, it sometimes means that they are not the
property of an individual but of a universitas; yet such things may become the property of an
individual; res hereditariae are res nullius until there is a heres. Res communes are those
which cannot be the objects of property, and therefore are res nullius, as the sea.
77
In the context of the doctrine of abandonment, effective occupatio can be
paraphrased or rephrased as de facto possession.
78 The active dominion aspect that
has been discussed earlier can be considered as a form of control or de facto
possession that satisfies all elements of possession in fact.
79 But whether or not it
74 Adeleye and Acquah-Dadzie (1999), p. 345 where res nullius has been defined as “[p]roperty
which belongs to nobody, whether because it has never been acquired or because its previous owner
has completely abandoned it, or because in the case of Roman law, it cannot be privately owned”.
75 Ibid. This book is an authority on res terminoligies and the res related terminologies in the text
have defined in the following manner: res communes—things which belong to the public, are used
by everyone and cannot be anybody’s private property; res corporales—things that can be
perceived by the senses; res divini juris—matters of divine right and matters of divine law; res
humani juris—matters of human law.
76 Macdonell (1899).
77 Smith (1859), p. 421.
78 Pollock and Wright (1888), p. 8.
79 Ibid. According to Pollock and Wright, if a thing or a property has been subject to effective
occupatio, there are a few questions that need to be answered: “a) of what kinds of physical control
356
T. M. Johansson