[ULPIANUS libro uicensimo secundo ad edictum. ] §12.2.11.prSed si possessori fuerit iusiurandum delatum iuraueritque rem petitoris non esse, quamdiu quidem possidet, aduersus eum qui detulit iusiurandum, si petat, exceptione iurisiurandi utetur: si uero amiserit possessionem, actionem non habebit, ne quidem si is possideat qui ei iusiurandum detulit: non enim rem suam esse iurauit, sed eius non esse.
[ULPIAN, on the Edict, Book XXII.] But if an oath has been tendered to a possessor, and he has sworn that the property does not belong to the claimant, as long indeed as he possesses it, he shall use the defense of an oath against the person who tendered the oath, if the latter sues. But if he has lost possession, he will not have an action, not even if the person who tendered the oath to him is in possession; for he did not swear that the property was his own, but that it did not belong to the other.
§12.2.11.1Proinde si, cum possideret, deferente petitore rem suam iurauit, consequenter dicemus amissa quoque possessione, si is qui detulit iusiurandum nanctus sit possessionem, actionem in factum ei dandam.
Therefore, if, while he was in possession, he swore that the property was his own upon the claimant tendering the oath, we shall consequently say that even if possession is lost, if the person who tendered the oath should obtain possession, an action on the facts must be given to him.
et fructus perceptos ex re, quam meam esse iuraui, restitui mihi placuit: sed et partum editum fetusque pecorum restituendos constat post iusiurandum delatum.
And it has been decided that the fruits gathered from the property which I swore was mine must be restored to me; moreover, it is established that offspring born and the young of cattle after the oath was tendered must also be restored.
§12.2.11.2Item si iurauero usum fructum alicuius rei uel meum esse uel dari mihi oportere, eatenus mihi competit actio, quatenus, si uere usum fructum haberem, duraret: quibus uero casibus amitteretur, non competit mihi actio.
Likewise, if I swear that the usufruct of a certain thing is mine or ought to be given to me, an action is competent to me only so far as it would endure if I truly had the usufruct; but in those cases in which it would be lost, no action is competent to me.
sed si rerum, in quibus usus fructus propter abusum constitui non potest, iurauerit usum fructum se habere uel sibi deberi, effectum iurisiurandi sequendum arbitror ideoque tunc quoque uideri eum recte iurasse puto et ex eo iureiurando posse petere usum fructum cautione oblata.
But if, in respect of things on which a usufruct cannot be established because of consumption, a person has sworn that he has the usufruct or that it is due to him, I judge that the effect of the oath must be followed, and therefore I think that then also he should be deemed to have sworn rightly, and that on the basis of that oath he can claim the usufruct upon offering a security.
§12.2.11.3Si, cum de hereditate inter me et te controuersia esset, iurauero hereditatem meam esse, id consequi debeo, quod haberem, si secundum me de hereditate pronuntiatum esset.
If, when there was a dispute between you and me concerning an inheritance, I swore that the inheritance was mine, I ought to obtain what I would have if judgment concerning the inheritance had been pronounced in my favor.
et non solum eas res restituere debes, quas tunc possidebas, sed et si quas postea coepisses possidere, perindeque haberi quod iuratum est atque si probatum esset: idcirco utilis actio mihi competit.
And you must restore not only those things which you possessed at that time, but also any things you might have begun to possess afterwards, and what was sworn must be treated just as if it had been proved; therefore, an analogous action is competent to me.
quod si ego ex eadem hereditate possiderem tuque coepisses petere eam a me, cum aduersus te iurassem, exceptione me uti debere iurisiurandi.
But if I were in possession of a part of the same inheritance and you had begun to claim it from me, since I had sworn against you, I ought to use the defense of an oath.
plane si alius a me hereditatem petere coeperit, dubium non erit, ut et Iulianus scribit, nihil mihi iusiurandum prodesse.
Clearly, if someone else begins to claim the inheritance from me, there will be no doubt, as Julian also writes, that the oath is of no benefit to me.