Leiden Law Blog

Some remarks on the so-called ‘Res communes omnium’

Posted on by Tobias van der Wal in Private Law
Some remarks on the so-called ‘Res communes omnium’

After a failed attempt to invest in a vacation resort in Mozambique, King Willem-Alexander has made Kranidi his holiday destination of choice. Kranidi a is village located in the Peloponnesian municipality of Ermionida and a place that offers the potential to rub shoulders with the likes of Sean Connery and president Putin. Last June, difficulties arose anew. Bone of contention this time is the private dock and the new fencing that have been built next to the house.

Despite the fact that the Greek government has given its fiat—according to some only after the direct involvement of three ministers—the execution of the project has generated fierce local opposition. Resistance is based on the argument that the construction has blocked access to the shores and the sea, a right which, according to the action committee ‘Intervention of Citizens of Ermionida’, has been assured by Greek law. The argument that the shores and the sea ‘belong to everyone’ is based on a very old concept, which is featured prominently in the writings of the classical Roman lawyers.

Unlike in Dutch law, where the State is presumed to be the owner of the seashore beaches, in Roman law, the shores did not belong to the State or to anyone at all: they were part of the so-called ‘res communes omnium’, ‘the things belonging to all’, a category including, according to the late-classical jurist Marcianus, the air, running water, the sea and the seashores (D. 1,8,2; the seashores stretched as far as the high-water mark, D. 50,16,112).

The Roman lawyers, as always preferring a piecemeal approach to each situation instead of offering broad definitions of concepts, did not explain clearly what this commonality of the beaches entailed; the question whether the beach was common to whom—to all Romans, all humans, or even to all living creatures?—remains for example unanswered. But various texts give examples of the common use that was guaranteed to ‘all’: this common use contained the benefits of fishing, the removal and drying of nets, the hunting of birds, and, according to Cicero (Pro Roscio Amerino 16,72) also the use one makes of the beach when one is cast ashore.

Although the fact that the beaches are ‘common’ might lead one to assume that a private dock would be an infringement of the legitimate use of others, the legal status of beaches in Roman law is not so clear-cut. Neratius for example holds (D. 41,1,14 pr.) that one is entitled to build structures on the shore, which he declares as public: in doing so, one obtains ownership of these structures as long as they are standing: once they have collapsed, the ground retakes its common function. Neratius draws a parallel with fish and wild animals: these were ‘res nullius’, things that belonged to no-one and which became the property of the person who caught these animals (acquisition by ‘occupatio’).

This means that the legal character of the beaches in Roman law was Janus-faced, in that they were meant to be used by all (‘res communes omnium’), but also had features of ‘res nullius’ which could be acquired by taking possession. It should be noted that the extent to which an individual could erect constructions on the beach was kept in check if others were hampered in their right to use the beach and access the sea. If things got out of hand, an individual could take recourse to an ‘interdict’ promulgated by the praetor (the interdict ‘ne quid in loco publico facias’), allowing the judge to ask for the builder’s assurance that construction would not proceed as planned. If the builder did not abide by this ruling, he had to tear down the building.

It appears that were the dispute in Ermionida to be decided according to Roman law, both parties would be able to glean lines of reasoning from the writings of the classical jurists—the action group stressing that the public use of the beaches and the sea was being compromised, and the royal family emphasizing the point that the private dock does not preclude public use-activities like fishing, catching birds—or being cast ashore, for that matter. Regrettably, such a debate cannot take place, as Greece has recently severed its direct ties with Roman law (until 1946, the Greek civil code was based on the ‘Hexabiblos’, a summary of the Basilica, which in turn was a Greek compilation of the Corpus Iuris), making way for a civil code based on the Bürgerliches Gesetzbuch,

Not having enough understanding of current Greek law, I will leave this matter to rest—maybe for the courts to decide, if the action group pushes on. It would be interesting however to raise the question of how this dispute would be decided according to Dutch law. As mentioned above, Dutch law takes a different approach from Roman law: the beaches do not belong to everyone but are (presumed to be) owned by the State. This fact renders acquisition of constructions on the beach by ‘occupatio’ impossible. But State-ownership begs the question whether the State can transfer its right to a private party. Just as in Roman law, the beaches are meant for public use, and are therefore considered to be part of the public domain (alongside the Waddenzee, public waterways and public roads). Transfer would be possible—not on the basis of the State’s private law authority as an owner (this is prevented by the public domain-character of the beaches), but on the basis of a government-issued decree, so that the people have (at least in theory) approved the transfer.

But a transfer would not strip the beaches of their public designation. So if the royal couple would not have ventured abroad and had chosen to build a dock on the beach in Katwijk, and an individual would find himself excluded from making use of the beach, a tort action would be available (this has taken the place of the praetorian ‘interdict’) to protect his claim to legitimate use of the beach. The question whether a dock or fencing would constitute an unacceptable infringement of an individual’s use, can, however, not be answered in general. As always, everything depends on the facts of the case (‘ius in causa positum est’).

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