Rights over “The Property of Another” (Iura in re aliena) in Byzantine and Mediaeval Serbian Law
Abstract
In some cases, when a person owned property, his rights over such property might be limited. The most important rights over another’s property, mentioned by Byzantine law and accepted in mediaeval Serbian legal sources are servitudes, pledge and emphyteusis. The rules on servitudes (δουλεία – rabota) penetrated in Serbian law at the beginning of 13th century, when Saint Sabba (Свети Сава) incorporated in his “Nomokanon” the whole Byzantine “Procheiron”. Its chapter XXXVIII, under the title “On novelties” (Περὶ καινοτομιῶν), contains different provisions, concerning the servitudes, mixed with administrative rules on building the new houses. That was the reason why Serbian translators of “Procheiron” entitled this chapter as “On building of new houses, reconstruction of the old and other things”. While the chapter XXXVIII of “Procheiron” contains 64 provisions, Matheas Blastares took in his “Syntagma” only 18, and created a short Chapter K-3 under the same title “On novelties” (“O novotvorenxhь” in Serbian translation). It contains, beside different decrees and prohibitions by administrative authorities, some urban servitudes, that could be changed by special agreements (συμφώνον – sьglasi«). Byzantine legal miscellanies always put together the rules on pledge in the same chapter with the provisions on loan, although modern legal science treats pledge as a part of the law of property and loan as a real contract and the part of the law of obligation. The chapter X of “Ecloga” has a title “On literal and unliteral loans and for them given pledges”; the chapter XVI of “Procheiron” is known under the title “On loan and pledge” and the chapter XXVIII of “Epanagoge” entitled “On loans and pledges”. For this reason, Matheas Blastares included the chapter Δ-2 under the title “On lenders, and loan, and pledges” in his “Syntagma”. Among Serbian legal sources, pledge was mentioned only in a few documents: these are so called “Justinian’s Law” (art. 26 and 27); King Milutin’s chrysobull, granted to the Hilandar’s pyrgos in Chrousija; King Dušan’s chrysobull, giving the church of Most Holy Virgin in Lipljan to the Hilandar’s pyrgos in Chrousija; and Dušan’s “Law Code” (art. 90). The chapter XV of the “Procheiron” has the title “On emphyteusis” and contains six provisions, speaking on emphyteusis of Church estates. Matheas Blastares introduced a short Chapter E-8, entitled “On emphyteusis” (“O nasa`denîi” in Serbian translation), in his “Syntagma”. Its chapter represents an interpretation of Justinian’s Novella CXX, chapters 2 and 8. In Serbian legal sources we can not find any information on emphyteusis.
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