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Justinian I · The Digest of Justinian §41.1.26.pr-41.1.26.2

Ownership in Specification and Accession by Transformation

Passage 6656 of 9271 · Latin

Summary

Paulus discusses the acquisition of ownership through specification and accession, illustrating with examples such as shipbuilding, tree transplantation, and wool dyeing based on the concepts of identity and transformation.

[PAULUS libro quarto decimo ad Sabinum. ] §41.1.26.prSed si meis tabulis nauem fecisses, tuam nauem esse, quia cupressus non maneret, sicuti nec lana uestimento facto, sed cupresseum aut laneum corpus fieret.
[PAULUS, On Sabinus, book 14] But if you should make a ship with my planks, the ship is yours, because the cypress wood does not remain as it was, just as wool does not remain when a garment is made, but it becomes a body of cypress or of wool.
Proculus indicat hoc iure nos uti, quod Seruio et Labeoni placuisset: in quibus propria qualitas exspectaretur, si quid additum erit toto cedit, ut statuae pes aut manus, scypho fundus aut ansa, lecto fulcrum, naui tabula, aedificio cementum: tota enim eius sunt, cuius ante fuerant.
Proculus indicates that we follow the rule which had pleased Servius and Labeo: in those things in which their own specific identity is expected, if anything is added, it accedes to the whole, such as a foot or a hand to a statue, a bottom or a handle to a cup, a post to a bed, a plank to a ship, mortar to a building: for the whole things belong to him to whom they belonged before.
§41.1.26.1Arbor radicitus eruta et in alio posita priusquam coaluerit, prioris domini est, ubi coaluit, agro cedit, et si rursus eruta sit, non ad priorem dominum reuertitur: nam credibile est alio terrae alimento aliam factam.
A tree torn up by the roots and planted in another's soil belongs to its former owner before it has taken root; when it has taken root, it accedes to the land, and if it is torn up again, it does not return to its former owner: for it is believable that, by the different nourishment of the earth, it has become a different tree.
§41.1.26.2Si meam lanam infeceris, purpuram nihilo minus meam esse Labeo ait, quia nihil interest inter purpuram et eam lanam, quae in lutum aut caenum cecidisset atque ita pristinum colorem perdidisset.
If you dye my wool, Labeo says that the purple wool is nonetheless mine, because there is no difference between purple wool and that wool which has fallen into mud or filth and thus lost its original color.

Notes

  1. §41.1.26.prtuam nauem esse — This accusative with infinitive (AcI) construction functions as the main clause of indirect speech, continuing from the preceding legal opinions. `tuam` refers to the creator of the ship, who is the subject of the conditional clause `si... fecisses`.
  2. §41.1.26.prin quibus propria qualitas exspectaretur — `quibus` is a relative pronoun referring to the principal things (implied by the context). The subjunctive `exspectaretur` is a subjunctive of characteristic, defining the class of things in which their own identity is expected to be maintained.
  3. §41.1.26.1aliam factam — An ellipsis of the accusative with infinitive `aliam factam [esse]`. `aliam` is a feminine singular accusative referring back to the feminine noun `arbor` (tree). `alio... alimento` is an ablative of means or cause, meaning 'became another tree by the different nourishment of the earth.'

Cite this passage

Justinian I, The Digest of Justinian §41.1.26.pr-41.1.26.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.1.26.pr-41.1.26.2

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