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Justinian I · The Digest of Justinian §41.2.17.pr-41.2.17.1

Dispossession by Force and the Difference from Ownership

Passage 6715 of 9271 · Latin

Summary

Ulpianus discusses that a person dispossessed by force should still be regarded as possessing because of the availability of an interdict, and explains the distinction between ownership and possession regarding intent.

[IDEM libro septuagensimo sexto ad edictum. ] §41.2.17.prSi quis ui de possessione deiectus sit, perinde haberi debet ac si possideret, cum interdicto de ui reciperandae possessionis facultatem habeat.
[THE SAME, in the seventy-sixth book on the Edict.] If anyone has been ejected from possession by force, he ought to be regarded just as if he were possessing, since he has the opportunity of recovering possession by means of the interdict on force.
§41.2.17.1Differentia inter dominium et possessionem haec est, quod dominium nihilo minus eius manet, qui dominus esse non uult, possessio autem recedit, ut quisque constituit nolle possidere.
The difference between ownership and possession is this, that ownership none the less remains with one who does not wish to be owner, whereas possession departs as soon as each person has decided that he does not wish to possess.
si quis igitur ea mente possessionem tradidit, ut postea ei restituatur, desinit possidere.
Therefore, if anyone has delivered possession with the intention that it should be restored to him afterwards, he ceases to possess.

Notes

  1. §41.2.17.prreciperandae possessionis — A gerundive construction in the genitive case modifying the noun 'facultatem'. The gerundive 'reciperandae' agrees in gender, number, and case with the noun 'possessionis' (feminine singular genitive), meaning 'of recovering possession'.
  2. §41.2.17.1ut quisque constituit — The conjunction 'ut' here is used with the indicative verb 'constituit' (which can be interpreted as perfect or present) to mean 'as soon as' or 'at the moment when', indicating temporal immediacy or coincidence.

Cite this passage

Justinian I, The Digest of Justinian §41.2.17.pr-41.2.17.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.2.17.pr-41.2.17.1

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