Zasada "nulli res sua servit" w prawie rzymskim i w polskim prawie cywilnym

Abstract

The issue dealt with in this article is to give more information on one of the Roman principles contributing to the government of servitude. The nulli res sua servit principle is a rule of a general and universal character referring to both real and personal servitude. On the one hand, the nulli res sua servit principl touched upon the case of servitude extinguishment ipso iure (by virtue of law), when it overlapped with the property right with a limited servitude with respect the same property (the so called moment of confusio). In such a case a servitude vi legis was no longer in force. In the Roman law, confusio was also the reason for the extinguishment of other limited property rights, such as pledge, emphiteusis, or the ground law. The same was with commitments. The case of claims and debt in one hand causes confusio, as a result of which obligatio by virtue of law undergoes depreciation. On the other hand, the above-mentioned principle can be referred to as a situation in which the owner could not establish servitude on his own property, whether he be its only owner or just a coowner. The nulli res sua servit principle was formulated by Paulus, a late-classical Jurist, in the Ad Sabinum comment. However, some of the contemporary Romanists questioned the authenticity of the Paulus’s text. The very principle is one of many Roman rules which have remained their relelaw, the very rule regulates the extinguishment of the limited property right as a result of the so called confusion. What is strange, though, is the lack of the references to the nulli res sua servit principle in the civilist jurisdiction and the Polish literature of the subject it is hardly used in its original version. The article also attempted to discuss the source texts referring to the nulli res sua servit principle.