Justinian I · The Digest of Justinian §24.1.25.pr

Donation of Another's Property and Usucapio by the Wife

Passage 3535 of 9271 · Latin

Summary

It explains that when a thing belonging to another is donated by a husband to his wife during marriage, the prohibition of spousal donations does not apply because it does not diminish the husband's own property, and thus the wife is allowed to immediately proceed with usucapion.

[TERENTIUS CLEMENS libro quinto ad legem Iuliam et Papiam. ] §24.1.25.prSed et si constante matrimonio res aliena uxori a marito donata fuerit, dicendum est confestim ad usucapionem eius uxorem admitti, quia et si non mortis causa donauerat ei, non impediretur usucapio.

[TERENTIUS CLEMENS, in the fifth book on the Lex Iulia et Papia.] But also, if during the subsistence of the marriage a thing belonging to another is donated to the wife by her husband, it must be said that the wife is immediately admitted to its usucapion, because even if he had not donated it to her mortis causa, usucapion would not be prevented.

nam ius constitutum ad eas donationes pertinet, ex quibus et locupletior mulier et pauperior maritus in suis rebus fit: itaque licet mortis causa donatio interueniat, quasi inter extraneas personas fieri intellegenda est in ea re, quae quia aliena est usucapi potest.

For the established law applies to those donations by which the wife becomes richer and the husband becomes poorer in respect of his own property: therefore, even if a donation mortis causa intervenes, it must be understood as being made as if between strangers in the case of a thing which, because it belongs to another, can be acquired by usucapion.

Notes

24.1.25.prlicet mortis causa donatio interueniat — Although the manuscript tradition lacks the negative non, many editors propose the emendation licet <non> mortis causa... (even if a donation not mortis causa intervenes) for logical consistency. Since donations mortis causa between spouses are generally permitted, it is inter vivos (non-mortis causa) donations that present the issue. This translation follows the transmitted text, but under either reading, the conclusion remains that a donation of another's property is exempt from the prohibition of spousal donations (as it does not diminish the husband's own estate) and thus allows usucapion as if between strangers.
24.1.25.prin suis rebus — The prohibition of donations between spouses applies only when one party is enriched and the other is impoverished 'in respect of his own property' (in suis rebus). In the case of a donation of a thing belonging to another (res aliena), the donor husband's own estate is not diminished, and thus this condition is not met, exempting the donation from the prohibition and allowing the wife's usucapion to proceed.

Cite this passage

Justinian I, The Digest of Justinian §24.1.25.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:24.1.25.pr

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