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Justinian I · The Digest of Justinian §39.5.6.pr

Transfer of Ownership and Revocation in Quarrying or Felling

Passage 6221 of 9271 · Latin

Summary

Ulpianus discusses when ownership is transferred and when the owner can no longer revoke consent regarding the quarrying of stone or cutting of trees based on donation, sale, or hire.

[IDEM libro quadragensimo secundo ad Sabinum. ] §39.5.6.prQui saxum mihi eximere de suo permisit donationis causa, statim cum lapis exemptus est meus fit, neque prohibendo me euehere efficit, ut meus esse desinat, quia quodammodo traditione meus factus est: plane si mercennarius meus exemit, mihi exemit.
[THE SAME in the forty-second book on Sabinus.] If anyone has permitted me to quarry stone from his land by way of donation, as soon as the stone is quarried, it becomes mine, and by prohibiting me from carrying it away, he does not bring it about that it ceases to be mine, because in a certain sense it has become mine by delivery: clearly, if my hireling quarried it, he quarried it for me.
sed si is qui a me emerat, siue mercede conduxerat, ut paterer eum sibi iure eximere, si antequam eximat, me paenituerit, meus lapis durat, si postea, ipsius factum auocare non possum: quasi traditio enim facta uidetur, cum eximitur domini uoluntate.
But in the case of one who had bought from me, or hired from me, the right to let him quarry for himself, if I regret my consent before he quarries, the stone remains mine; if afterward, I cannot reclaim what has become his: for a constructive delivery seems to have taken place when it is quarried with the consent of the owner.
quod in saxo est, idem erit etiam, si in arbore caesa uel dempta acciderit.
What applies to stone will also be the same if it happens in the case of a felled or uprooted tree.

Notes

  1. 39.5.6.prQui saxum mihi eximere de suo permisit — Although the clause begins with the nominative relative pronoun qui, the subject of the main clause (meus fit) is lapis (the stone), resulting in an anacoluthon. In effect, it functions as a conditional clause, meaning 'if anyone has permitted...'.
  2. 39.5.6.pripsius factum — While this phrase could be interpreted as 'his own act (of quarrying)', it is legally more consistent to supply the neuter noun saxum and interpret it as 'the stone made his own (ipsius factum [saxum])' in contrast to the earlier 'meus factus est' (became mine). This latter interpretation is adopted here.
  3. 39.5.6.prquasi traditio — Refers to 'constructive delivery' or 'quasi-delivery'. While there is no physical transfer of possession (actual delivery), the law deems delivery to have taken place when the recipient separates or quarries the object with the owner's consent.

Cite this passage

Justinian I, The Digest of Justinian §39.5.6.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.5.6.pr

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