- Source
- Digesta Iustiniani Augusti. Mommsen, Theodor & Krueger, Paul, editors. Berlin: Weidmann, 1870.
- Translation
- AI-generated (gemini-3.5-flash) — machine translation; may contain errors
- Languages
- 日本語 · English · 简体中文 · 한국어
- CTS URN
- urn:cts:latinLit:phi2806.phi002.humanitext-lat1:7.6.3.pr
- Generated
- Humanitext Reader · reader.humanitext.ai · 2026-11-13
A person who received a usufruct via trust but ceased to use it for a period sufficient to lose it by non-use under lawful ownership cannot bring an action for its restoration, as it is absurd for a mere possessor to have a stronger right than a lawful owner.
[IULIANUS libro septimo digestorum.]
[JULIAN in the seventh book of the Digests.]
Qui usum fructum traditum sibi ex causa fideicommissi desiit in usu habere tanto tempore, quanto, si legitime eius factus esset,1 amissurus eum fuerit,2 actionem ad restituendum eum habere non debet: est enim absurdum plus iuris habere eos, qui possessionem dumtaxat usus fructus, non etiam dominium3 adepti sint.
A person who has ceased to hold in use a usufruct delivered to him on the ground of a trust, for as long a time as that in which, if it had lawfully become his, he would have lost it, ought not to have an action to restore it; for it is absurd that those who have acquired only the possession of a usufruct, and not also its ownership, should have a greater right.
- 7.6.3.prsi legitime eius factus esset
The pluperfect subjunctive factus esset forms a past contrary-to-fact conditional clause. eius is the genitive of possession of the pronoun is (referring to the person qui...), where usus fructus is the omitted subject of factus esset (following the idiom aliquid alicuius fit, 'something becomes someone's'). It translates to 'if it [the usufruct] had lawfully become his'.
- 7.6.3.pramissurus eum fuerit
Since the apodosis of the conditional sentence is embedded within a comparative clause (quanto...), the perfect subjunctive of the active periphrastic conjugation (amissurus fuerit) is used. The contrary-to-fact apodosis (which would normally be amisisset, 'he would have lost') is shifted to the perfect subjunctive in this subordinate environment.
- 7.6.3.prpossessionem dumtaxat usus fructus, non etiam dominium
Delivery via trust (fideicommissum) alone does not establish the formal legal right (dominium, here referring to a fully vested quasi-ownership of the usufruct) but only a factual 'possession' (possessionem). If a person in this possessory state were exempt from the loss of the right by non-use, they would be in a more favorable position than a formal right-holder. To avoid this 'absurdity' (absurdum), the text applies the doctrine of loss by non-use (or denies the action for restoration).