BARTOLUS AND HIS DEFINITION OF OWNERSHIP

Commenting on D 41.2.17.1 – a text from the Digest dealing with the difference between possession and ownership (dominium) – the celebrated jurist Bartolus de Saxoferrato gives the following definition of ownership: “What, then, is ownership? Answer: it is the right of complete disposal over a corporeal thing, as long as it is not prohibited by law.” This definition has influenced conceptions of property law for many centuries. It is, for example, repeated almost verbatim in the French Code civil, article 544:

The definition of Bartolus is thus apparently not only an adequate expression of the classical Roman law but also a forerunner of the modern, liberal concept of ownership.

The modern continental concept of ownership is that of an absolute right of use and disposal. There can be only one owner (or group of co-owners). The possibility of a vertical division of ownership is excluded. Article 544 of the French Code was drafted as a clear expression of the legislative will to end all feudal institutions. In feudal law, the right of ownership is vertically split between the feudal lord and the tenant: neither has the full right of disposal, because each has to respect the position of the other. Thus, neither lord nor tenant has the right to dispose de la manière la plus absolue (“in the most absolute manner”).