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Justinian I · The Digest of Justinian §41.2.20.pr

Borrower's Refusal to Deliver and Loss of Possession

Passage 6718 of 9271 · Latin

Summary

Discusses whether a borrower's refusal to deliver a lent item that has been sold constitutes depriving the owner of possession, stating that it depends on the circumstances and does not result in loss of possession if there is a just reason for non-return.

[IDEM libro nono decimo digestorum. ] §41.2.20.prSi quis rem, quam utendam dederat, uendiderit emptorique tradi iusserit nec ille tradiderit, alias uidebitur possessione dominum interuertisse, alias contra.
[THE SAME, in the nineteenth book of the Digests.] If someone has sold a thing which he had given to be used, and ordered it to be delivered to the buyer, but he has not delivered it, in some cases he will be deemed to have deprived the owner of possession, and in other cases the contrary.
nam nec tunc quidem semper dominus amittit possessionem, cum reposcenti ei commodatum non redditur: quid enim si alia quaepiam fuit iusta et rationabilis causa non reddendi, non utique ut possessionem eius interuerteret?
For the owner does not always lose possession even at that time when the lent thing is not returned to him upon his demanding it back; for what if there was some other just and reasonable cause for not returning it, and certainly not for the purpose of depriving him of his possession?

Notes

  1. §41.2.20.prrem, quam utendam dederat — utendam is the feminine accusative singular of the gerundive, expressing purpose. The expression 'rem utendam dare' means 'to give a thing to be used', i.e., to lend it.
  2. §41.2.20.prpossessione dominum interuertisse — interuerteret/interuerto means 'to embezzle' or 'to deprive of'. Accompanied by the ablative 'possessione', it means 'to deprive the owner of possession'. The subject of 'interuertisse' is the borrower ('ille' from the previous clause), forming a nominative with infinitive construction with 'uidebitur'.
  3. §41.2.20.prnon utique ut — non utique is an emphatic negation meaning 'not at all' or 'not by any means'. The 'ut' clause with the imperfect subjunctive 'interuerteret' expresses purpose or result, translated as 'not by any means for the purpose of depriving him of his possession'.

Cite this passage

Justinian I, The Digest of Justinian §41.2.20.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.2.20.pr

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