My peacock was chased off my property by my surly neighbour. It now lives in his yard. I miss my peacock. Is it still mine?
Aha! My first client (*adjusts toga*). Her name is Claudia Metella, but between you and me, she’s that sparrow-lady Catullus is so obsessed with. No wonder she’s got peacock problems; her aviary is overflowing.
Here’s my reply:
Say goodbye to the peacock – you don’t own him anymore. You’ll get no sympathy from me: if you had read my Res Cottidianae (‘Everyday Matters’), you would know that peacocks, like doves and bees, are the kind of animal that continually goes and returns. So long as they have the instinct to return to us (animus revertendi) they remain ours; but as soon as they lose that instinct, they cease to be ours and are open to be acquired by anybody. It seems like the peacock likes your neighbour’s yard better than your own – he’s his now!
If you want your peacock back, you should try to tempt him back to your yard. Try getting rid of the sparrows for a start.
If you wanted to know if your neighbour had done anything wrong, you should have paid me a larger honorarium.
p.s. My Res Cottidianae are now out of print and hard to get hold of. You can find the bits you need in Digest 41.1.5 (Gai. 2 res cott.). Don’t trust Justinian and his crooked media though; always changing what I wrote!
Claudia’s question is whether she remains the legal owner of the peacock despite its relocation to her neighbour’s yard. Recall that Gaius divided the law into three branches: persons, things, and actions. We are dealing here with the law of things, which Gaius further subdivided into the law of property, obligations and succession. Claudia’s question relates to the law of property, and, specifically, to the ways in which we acquire and lose ownership of a thing (res).
One mode of acquisition was known as occupatio. The lawyers recognised that the act of taking possession of certain types of thing had the effect of making the possessor the owner. One class of property which could be acquired in this way were res nullius. These were things – like animals – which were capable of being owned, but which were not yet owned by anyone.
So far as animals were concerned, some difficulties arose. Ownership in a wild animal (ferae) only persisted so long as it was effectively controlled. This made sense: a fisherman who landed a fish became its owner, but if it flipped out the boat, it was open to the next taker. On the other hand, tame animals (mansuetae naturae) were treated in the same way as any other corporeal moveable (e.g., slaves): if it wandered off, the owner’s interest in the property was unaffected. But what about those animals that were neither obviously wild or tame? This class – which included doves, bees, and peacocks – remained the property of their owner for so long as they had the habit of returning (animus revertendi).
Claudia’s peacock belongs to the latter category: if she cannot persuade it to return, the evidence of her effective control has been lost and she can no longer claim it as her own. Those fickle birds! Can’t trust ’em.