TOPIC 1: THE CLASSIFICATION OF RES

You will note that this sub-topic contains several Latin terms. I will explain and use them
as many are still used in modern textbooks, articles, and court cases. However, I will not
expect you to memorise all the Latin terms used here. In a test or exam, you may use the
English translation in your answer. If you want to use Latin, remember that, as with English
terminology, spelling mistakes can lead to a loss of marks where it changes the meaning
of a word. Some of the Latin terms are difficult to translate or are still used often enough
that I do expect you to know them. I will specifically draw your attention to these terms.

1. CONCEPT & CLASSIFICATION OF RES

1.1 DEFINITION OF RES (PROPERTY)
The concept of ‘thing’ or ‘res’ has always been difficult to define within a legal context. In
classical Roman law, the concept of ‘res’ was wider than the concept of ‘thing’ in South
African law today. A “res” was something that could form part of a person’s patrimony –
any asset with economic value. The concept included both corporeal and incorporeal
things. The Latin for corporeal things is res corporales. Res corporales refer to tangible
things (things that can be touched) such as land, gold, a horse. The Latin for incorporeal
things is res incorporales and refers to intangible things (things that cannot be touched,
immaterial things) such as an obligation, an inheritance, or a usufruct. 1

Although both corporeal and incorporeal things were included within the concept res,
there were limitations on the types of rights that could be acquired over these things –
only corporeal things could be possessed or could be the subject of acquisition of
ownership through usucapio (prescription).

You need to be able to answer the following: Why is it necessary to be able to distinguish
between corporeal and incorporeal things?

1.2 CLASSIFICATION OF THINGS

We will focus on the classification of CORPOREAL THINGS. The first classification we need to
look at is public versus private things. We will start with public things – things that cannot
be privately owned.

1.2.1 CLASSIFICATION OF PUBLIC THINGS

The category, public things, was subdivided into res communes, res universitas, and res
nullius. Certain things, such as the seashore, were difficult to place in a specific category.

1.2.1.1 Res communes

Res communes were things that belonged to everyone (things common to all) and could
be used and enjoyed by everyone for example the air, the sea, or running water.

1
The term usufruct will be explained later in the module.
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1.2.1.2 Res publicae

Res publicae were things belonging to the state such as “public roads, harbours, ports,
certain rivers, bridges, and enemy property capture in military action”. 2 It also included
“provincial land, land in provinces outside Italy.” 3 We will not be focusing on this
classification.

1.2.1.3 Res universitas

Res universitas were things that belonged to a specific city or community for the use of
the inhabitants of that city or community for example theatres, parks, racecourses, and
stadia.

1.2.1.4 Res nullius

Res nullius referred to those things that belonged to no one. It was possible to acquire
dominium over certain things in this category for example wild animals. However, private
ownership of other things within the category res nullius, for example, res divini or ‘divine’
things, could not be acquired. Res divini included res sanctae, res religiosae and res
sacrae.
a) Res sanctae refers to things under the protection of the gods for example city walls
and -gates.
b) Res religiosae refers to things dedicated to the gods of the underworld such as
graves, graveyards, and tombs.
c) Res sacrae refers to things dedicated to the heavenly gods for example temples,
altars, basilicas, sacred groves, and temple equipment.

1.2.1.4 Seashore
The classification of certain public things was unclear, for example, the seashore.
According to some sources the seashore is classified as res communes (common to all),
while others describe the seashore as res universitas, belonging to a particular
community. However, the classification is of lesser importance – what is important is the
use to which it could be put. According to P du Plessis Borkowski’s Textbook on Roman
Law 5th Ed p 158 “[e]veryone… had the right of access to the seashore… No one could
acquire any part of the seashore but shelters and similar erections could be built, if
authorized and became the property of the builder…”

It is important to be able to identify whether something can be classified as a public thing

– it has implications for ownership rights (individual ownership not possible) as well as the
validity of certain contracts (we will return to this topic when we discuss the Roman law of
Sale).

2
P du Plessis Borkowski’s Textbook on Roman Law 5th Ed p 156.
3
P du Plessis Borkowski’s Textbook on Roman Law 5th Ed p 156.
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1.2.2 CLASSIFICATION OF PRIVATE THINGS:

Certain aspects of the classification below (for example movables and immovables) also
apply to public things. However, we will limit our discussion to private things.

1.2.2.1 Res mobiles & res immobiles

The first classification we are going to look at is movable things versus immovable things.
In Latin movable things are referred to as res mobiles (mobiles sounds like mobile i.e.,
something that can move or be moved) for example a horse or a statue. The Latin term
for immovable things is res immobiles and this refers to land and everything permanently
attached to land (for example buildings).

This distinction was not as important to the Romans as it is in South African law today.
However, the classification was relevant for determining the period required to acquire
ownership through prescription, for possessory interdicts, and the constitution of certain
servitudes. We will return to these topics later.

1.2.2.2 Res fungibiles & res non fungibiles

The next classification we need to focus on is that of a res as either res fungibiles or res
non fungibiles. The Latin term res fungibiles refers to fungible things, things that can be
replaced, generic things, things that are not individually indicated but only indicated by
reference to a type for example corn, money, or wine. On the other hand, the term res
non fungibiles refers to specific things (non-fungible), things that have a separate identity
and a degree of permanence for example the slave Stichus, or a chariot.

Res fungibles where often also res consumptibiles meaning consumable things, things
consumed by normal use in accordance with their economic purpose for example food.
Not all consumable things where also fungible (although as stated this was usually the
case) – for example, it was also possible that a specific thing could be consumable but
not replaceable such as an exclusive bottle of wine.

The distinction between fungible and non-fungible things is important, as the types of
contract concluded regarding fungible things and non-fungible things differed.

1.2.2.3 Res mancipi & res nec mancipi (These are two of the terms that are difficult
to translate into English and thus an example of where it is advisable to know and use the
Latin terminology)
For purposes of the Roman Law of Property, this is the most important distinction. (This
does not mean the other distinction are not important but the classification of things as
fungible or not, as explained above, does not impact the rights acquired or methods of
acquisition used in terms of the law of things but rather the law of obligations. Whether
something is classified as res mancipi versus res nec mancipi, on the other hand, does
impact on for example the method of acquisition of ownership that had to be used to
establish dominium.)
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Private things could also be subdivided into res mancipi and res nec mancipi. The
classification was relevant for how dominium (Roman ownership) could be transferred.
Res mancipi were transferred through the formal methods (mancipatio or in iure cessio) 4
in terms of ius civile 5 – thus only available to Roman citizens of foreigners with
commercium. 6

Res mancipi was a limited category, a closed list. There are different explanations on
exactly how the Romans decided whether a particular thing classified as res mancipi or
not. One of these explanations was that res mancipi were the things that determined the
wealth of citizens for purposes of the census. 7 Another explanation was that res mancipi
were the most important things in the early agrarian society in other words slaves, beasts
of draught and burden (oxen, mules, horses, and donkeys), certain rural praedial
servitudes (iter, actus, via and aquaeductus), and land (and buildings) in Italy (later in
provinces with the same status as Italy). Although the distinction lessened in importance
over time and was finally abolished by Justinian, the distinction was extremely important
in pre-classical and classical Roman law.

In the past, students have struggled with the different explanations of why something is
classified as res mancipi or not. For example, it is not that easy for a modern Law student
to remember what was important in an early agrarian society. Most students have found
that it is simpler to memorise the list of things included in the category – as stated, it was
a closed list.

Res nec mancipi was simply everything else, everything not included in the closed list of
res mancipi. Please bear in mind that the division between the categories was not based
on monetary value – some extremely valuable things such as camels and elephants were
not included in the list of res mancipi and were thus classified as res nec mancipi.
Dominium (Roman ownership) of res nec mancipi could be transferred through the
informal method of acquisition traditio.

1.2.2.4 Divisible and indivisible things

The next classification is that of a res as either divisible or indivisible. This was relevant for
the dissolution of co-ownership. Divisible things are things that can be divided without

4
The terms mancipatio and in iure cessio will be explained when we look at the acquisition of ownership.
5
The term ius civile was explained in Week 1 Sub-topic 3.
6
Commercium was one of the primary benefits of Roman citizenship. It was the right (the ius commercii) to use
mancipatio as a means to acquire ownership of res mancipi. Some authors also speculate that it included the right
to use the forms and procedures of the ius civile to enter into and to conclude commercial transactions. [Source:
https://global.oup.com/uk/orc/law/roman/borkowski5e/resources/glossary/]
7
Thomas, van der Merwe & Stoop Historical Foundation of South African Private Law 2nd Edition p 145 explains
that “[t]he Roman census… may be described as a national register, prepared for taxation purposes and to
determine the citizens’ liability to do military service.”
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diminishing their value such as land, or a roll of material. Indivisible things are things that
cannot be divided such as a slave or a painting.

TEST YOURSELF:
Can you define the concept res?
Do you understand the importance of the different distinctions? For example, why do
you need to know whether a res falls within the category res mancipi?
Do you know the list of things that are regarded as res mancipi? When reading a
problem question will you know when the res used in the example is res mancipi and
when it is not?