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Justinian I · The Digest of Justinian §41.1.20.pr-41.1.20.2

Limits of Transfer by Delivery and Acquisition via Free Persons

Passage 6650 of 9271 · Latin

Summary

The text discusses the principle that delivery cannot transfer more rights than the transferor possesses, the preservation of a land's servitude status upon transfer along with the liability for false declarations, and the acquisition of possession and ownership through a free person acting as an agent.

[ULPIANUS libro uicensimo nono ad Sabinum. ] §41.1.20.prTraditio nihil amplius transferre debet uel potest ad eum qui accipit, quam est apud eum qui tradit.
[ULPIANUS, On Sabinus, book 29] Delivery neither should nor can transfer to the recipient any greater right than is possessed by the person who makes the delivery.
si igitur quis dominium in fundo habuit, id tradendo transfert, si non habuit, ad eum qui accipit nihil transfert.
Therefore, if anyone had ownership in a tract of land, he transfers it by delivering it; if he did not have it, he transfers nothing to the recipient.
§41.1.20.1Quotiens autem dominium transfertur, ad eum qui accipit tale transfertur, quale fuit apud eum qui tradit: si seruus fuit fundus, cum seruitutibus transit, si liber, uti fuit: et si forte seruitutes debebantur fundo qui traditus est, cum iure seruitutium debitarum transfertur.
Whenever ownership is transferred, however, it is transferred to the recipient in the same condition as it was with the person who delivers it: if the land was subject to a servitude, it passes with the servitudes; if it was free from them, as it was: and if, by chance, servitudes were owed to the land which was delivered, it is transferred together with the right to the servitudes owed.
si quis igitur fundum dixerit liberum, cum traderet, eum qui seruus sit, nihil iuri seruitutis fundi detrahit, uerumtamen obligat se debebitque praestare quod dixit.
Therefore, if anyone, when delivering land, declares it to be free from servitudes when it is actually subject to one, he in no way detracts from the right of servitude on the land, but nevertheless he binds himself and will be obliged to make good what he said.
§41.1.20.2Si ego et Titius rem emerimus eaque Titio et quasi meo procuratori tradita sit, puto mihi quoque quaesitum dominium, quia placet per liberam personam omnium rerum possessionem quaeri posse et per hanc dominium.
If Titius and I have bought a thing, and it has been delivered to Titius also in his capacity as my agent, I think that ownership is acquired for me as well, because it is accepted that possession of all things can be acquired through a free person, and through this, ownership.

Notes

  1. §41.1.20.prnihil amplius ... quam est apud eum — This is a `quam` clause depending on the comparative `amplius`. The subject of `est` is omitted, representing a relative clause (equivalent to `id quod`) corresponding to the preceding `nihil`, indicating the actual bundle of rights possessed by the transferor.
  2. §41.1.20.1eum qui seruus sit — The accusative `eum` refers to the preceding `fundum`. The verb `sit` in the relative clause is in the subjunctive mood either because it is attracted to the hypothetical context of the preceding conditional clause (`si quis...`) or to convey a concessive nuance ("although it is actually subject to a servitude").
  3. §41.1.20.2quasi meo procuratori — The adverb `quasi` ("as it were," "as if") modifies `meo procuratori`. This indicates a overlapping situation where Titius, while acting as a co-purchaser to acquire his own share, also receives delivery in a capacity equivalent to my agent (procurator) for my share.

Cite this passage

Justinian I, The Digest of Justinian §41.1.20.pr-41.1.20.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.1.20.pr-41.1.20.2

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