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Justinian I · The Digest of Justinian §39.2.5.pr-39.2.5.2

Usucaption by Admission and Multiple Parties

Passage 6126 of 9271 · Latin

Summary

Provisions concerning how putting into possession can lead to acquisition of ownership through time, the method of putting into possession when there are multiple potential guarantors or claimants, and cases where both the owner and the usufructuary demand security.

[PAULUS libro primo ad edictum. ] §39.2.5.prPraetoris officium est, ut missus in possessionem etiam eam per longi temporis spatium in suum dominium capere possit.
[PAULUS libro primo ad edictum.] It is the duty of the praetor to ensure that a person who has been put into possession can also acquire it [the property] into his own ownership through the lapse of a long period of time.
§39.2.5.1Si plures sint domini, qui cauere debent, et aliquis non caueat, in portionem eius mittetur.
If there are several owners who ought to give security, and one of them does not give it, [the claimant] will be put into possession of that person's portion.
et contra si aliquot sint, qui caueri sibi desiderant, et alius pretiosiores, alius uiliores habeat aedes, siue unius domus plures habeant dispares partes: tamen non magnitudine dominii quisque, sed aequaliter mittentur omnes in possessionem.
Conversely, if there are several persons who desire security to be given to them, and one has more valuable and another less valuable buildings, or several persons have unequal shares in a single house, nevertheless they will all be put into possession equally, and not according to the size of each one's ownership.
§39.2.5.2Si et dominus proprietatis et fructuarius desideret sibi caueri damni infecti, uterque audiendus est: nec enim iniuriam sentiet promissor, non plus cuique praestaturus, quam quod eius intersit.
If both the owner of the property and the usufructuary desire security to be given to them for threatened damage, both must be heard; for the promisor will suffer no injustice, since he will not have to pay to either more than what that person's interest is.

Notes

  1. §39.2.5.pream — The feminine singular pronoun eam refers back to the preceding possessionem (possession), but substantively means 'the property held in possession'. By making it the direct object of 'in suum dominium capere' (to acquire into one's own ownership, i.e., usucapio), the text indicates that legal possession, through the lapse of a long period, can ripen into ownership.
  2. §39.2.5.1portionem eius — The genitive eius refers back to aliquis (the particular co-owner who does not give security) in the conditional clause. The unexpressed subject of the passive verb mittetur (will be put [into possession]) is the claimant who desired security, indicating that the entry into possession is restricted to the share of the defaulting co-owner.
  3. §39.2.5.2non plus cuique praestaturus — The future active participle praestaturus agrees with promissor (the promisor), the subject of the main clause, expressing a causal or conditional nuance ('since he will not have to pay'). The genitive eius refers back to cuique (each person, i.e., the owner and the usufructuary respectively), demonstrating that although security is given to both, the promisor incurs no injustice (iniuria) because his liability to each is limited strictly to their respective financial interest (interest).

Cite this passage

Justinian I, The Digest of Justinian §39.2.5.pr-39.2.5.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.2.5.pr-39.2.5.2

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