EMERGENCE AND FORMATION OF THE CONCEPT OF EASEMENTS IN PRIVATE LAW
Journal Title: Вісник Одеського національного університету. Правознавство - Year 2016, Vol 21, Issue 1
Abstract
In the article there is drawn the conclusion that the conventional legal base of an easement is the Roman private law. The institute of an easement in Roman law represented the developed and various legal designs. Despite a large number and a variety of easements, Roman law developed several general principles which allow distinguishing easements from other proprietary rights that found the reflection also in the modern legislation of Ukraine. In Ancient Rome first of all it is possible to refer existence of two immovable objects, belonging to different owners, to the conditions of emergence of the first easements. At the same time the site of one of owners has to be in more advantageous economic or esthetic position, therefore, its benefits can be necessary and favorable to other site. Other condition of emergence of the easement right is the neighborhood or the general border of such sites. The most ancient of the easements appurtenant are: 1) three road easements: iter - the right of pass through others site; actus - the right of journey and a run of the cattle; via - the right of the road which includes the right of pass, journey and run of the cattle, and also the right to walk; 2) a water easement - aquae ductus - the right to carry out water through others manor. Ancient Roman lawyers imagined essence of easements differently, than lawyers of the classical period. During this period easements were considered as the right for a part of others thing and a subject of an easement was that part of others thing which the subject dominating the land plot used. In the period of the end of the Republic and the beginning of the Empire there was a change of the design of easements. They are meant as not the right for a part of others thing, but the right for use of someone else’s property in a certain relation any more. In Roman law easement legal relationship, by the general rule, had gratuitous character, but by way of exception in a judicial proceeding, in the claim of the interested person, the payment for a pass easement to a grave of ancestors could be established.
Authors and Affiliations
A. V. Sosnina
Keywords
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