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Justinian I · The Digest of Justinian §41.1.21.pr-41.1.21.1

Purchases by Bona Fide Servants and Transfer by Agreement

Passage 6651 of 9271 · Latin

Summary

Pomponius presents Proculus' view on the ownership of a thing bought by a slave (or a free person) serving another in good faith. He also explains that ownership of a thing already possessed by a recipient can be transferred solely by the owner's will, without physical delivery.

[POMPONIUS libro undecimo ad Sabinum. ] §41.1.21.prSi seruus meus tibi bona fide seruiret et rem emisset traditaque ei esset, Proculus nec meam fieri, quia seruum non possideam, nec tuam, si non ex re tua sit parata.
[POMPONIUS, On Sabinus, book 11] If my slave were serving you in good faith, and had bought a thing, and it had been delivered to him, Proculus thinks that it becomes neither mine, because I do not possess the slave, nor yours, if it was not acquired from your property.
sed si liber bona fide tibi seruiens emerit, ipsius fieri.
But if a free person serving you in good faith should buy it, it becomes his own.
§41.1.21.1Si rem meam possideas et eam uelim tuam esse, fiet tua, quamuis possessio apud me non fuerit.
If you should possess my property, and I should wish it to be yours, it will become yours, although the possession was not with me.

Notes

  1. §41.1.21.prProculus nec meam fieri — A verb of thinking or declaring (such as "putat" or "ait") is omitted after the subject "Proculus." Consequently, the subsequent clauses are in indirect speech (accusative and infinitive construction), with the accusative subject "rem" (the thing) omitted before "fieri." The subjunctives in the subordinate clauses ("possideam" and "sit parata") are due to subordination in indirect speech.
  2. §41.1.21.prex re tua — Meaning "from your property." This reflects the classical Roman law rule that a property acquired by a slave of another who is held in good faith belongs to the possessor ("you") only if it is derived from the possessor's own estate ("ex re possessoris") or from the slave's own labor ("ex operis"); otherwise, it belongs to the true owner ("me").
  3. §41.1.21.1quamuis possessio apud me non fuerit — The perfect subjunctive "fuerit" is introduced by the concessive conjunction "quamuis." This describes the doctrine of "traditio brevi manu" (delivery by short hand), where ownership of a thing already possessed by the transferee is transferred by mere agreement, without the need for a physical transfer of possession from the owner.

Cite this passage

Justinian I, The Digest of Justinian §41.1.21.pr-41.1.21.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.1.21.pr-41.1.21.1

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