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Usucapio was a concept in Roman law that dealt with the acquisition of ownership of something through possession. It was subsequently developed as a principle of civil law systems, usucaption. It is similar to the common law concept of adverse possession, or acquiring land prescriptively.
Usacapio was a form of acquisitive prescription – the passage of time entitled the holder to particular rights of acquisition. This right is a new right, one without reference to any existing rights.
Usucapio assisted two cases: where a thing had been transferred improperly (for example, transferring a res mancipi by traditio), or where the transferor of a thing did not hold proper title (for example, sale by a non-owner).
Something that had at any point been stolen ( furtum) or taken by force could not be usucapted. Furtum was much wider than theft in the modern criminal law ( furtum was a civil action), involving most sorts of bad faith interference in another's property. This had the practical effect of extending the good faith requirement to the transferor as well as the transferee – for someone who sold, gifted or otherwise transferred the property of another in bad faith committed furtum. Indeed, that the transferor is a non-owner in fact means normally that at some point there has been furtum. Gaius, in book two of The Institutes gives two counter-examples: firstly, where a borrower has died, and his heir believes the thing to be part of his inheritance and sells it; secondly, where a man with a usufruct over a slave woman, ignorant of the law, wrongly believes the child to be his and sells it. Land could not be stolen, but it could certainly be taken by force. In either case (theft or force) it is only if the owner from whom it has been stolen regains it, or considers it lost forever (i.e. abandons it), that a valid usucapio can take place. Given this strict limitation, usucapio must surely only have been about shifting the burden of proof to the claimant from the possessor, whose possession was usually easy to show. However, it remains a departure from usual Roman ideas of ownership.
To deny the owner the right of vindicatio against the good faith possessor would run contrary to the concept of the usucapio, with it effectively completed before the required time had passed. In the case of the bonitary owner, the Praetor provided a defence to the vindicatio if there had been a transfer (improper or not). It was typical of the Praetor to ignore technical formalities to achieve practical benefits, in this case certainty of ownership.
If either the bonitary owner or good faith possessor was dis-possessed, he could under the normal law claim a possessory interdict against his dis-possessor, but this did not cover further people if possession had been further transferred. If that immediate dis-possessor was the owner, then the case would be the same as for vindicatio: the bonitary owner would have a claim, but the good faith possessor would not. If the immediate dis-possessor was not the owner, then both the bonitary owner and the good faith possessor would have a claim. This claim was the actio Publiciana.
By giving the bonitary owner the protection of an owner, the Praetor had very much weakened the res mancipi distinction and come close to abolishing the need for mancipatio. The Romans did not speak of the bonitary owner as dominus (as a normal owner would be), but rather to say that he had the thing in bonis from which the term "bonitary" is derived. The Romans considered ownership unique and indivisible: accordingly, one either had the rights of ownership or one did not. The Praetor's distinction made this unclear. Ultimately, Justinian abolished res mancipi, so the bonitary owner became owner and this theoretical problem was solved. However, the position as to the good faith possessor relied on a concept of relative title, part of the common law, but something which was alien to Roman ideas of ownership. The Romans merely considered it possession, thus bypassing the theoretical problem.
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