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Justinian I · The Digest of Justinian §41.2.23.pr-41.2.23.2

Possession in Inheritance, Captivity, and Bound Freemen

Passage 6721 of 9271 · Latin

Summary

Discusses the requirements for the transfer of rights and the acquisition of possession in inheritance, the loss of possession by captives and the requirements upon their return, and the impossibility of acquiring possession through a bound free man.

[IDEM libro primo epistularum. ] §41.2.23.prCum heredes instituti sumus, adita hereditate omnia quidem iura ad nos transeunt, possessio tamen nisi naturaliter comprehensa ad nos non pertinet.
[THE SAME, in the first book of his Letters.] When we are appointed heirs, upon the inheritance being accepted, all rights indeed pass to us, yet possession does not belong to us unless it is physically grasped.
§41.2.23.1In his, qui in hostium potestatem peruenerunt, in retinendo iura rerum suarum singulare ius est: corporaliter tamen possessionem amittunt: neque enim possunt uideri aliquid possidere, cum ipsi ab alio possideantur: sequitur ergo, ut reuersis his noua possessione opus sit, etiamsi nemo medio tempore res eorum possederit.
In the case of those who have fallen into the power of enemies, there is a unique rule in respect to retaining the rights to their property; yet they lose possession physically; for they cannot be deemed to possess anything when they themselves are possessed by another. It follows, therefore, that upon their return, a new possession is necessary for them, even if no one has possessed their property in the meantime.
§41.2.23.2Item quaero, si uinxero liberum hominem ita, ut eum possideam, an omnia, quae is possidebat, ego possideam per illum.
Likewise I ask, if I bind a free man in such a way that I possess him, whether I possess through him all the things which he possessed.
respondit: si uinxeris hominem liberum, eum te possidere non puto: quod cum ita se habeat, multo minus per illum res eius a te possidebuntur: neque enim rerum natura recipit, ut per eum aliquid possidere possimus, quem ciuiliter in mea potestate non habeo.
He replied: If you bind a free man, I do not think that you possess him; since this is the case, much less will his property be possessed by you through him; for the nature of things does not allow us to be able to possess anything through someone whom I do not have in my power civilly.

Notes

  1. §41.2.23.pradita hereditate — Ablative absolute construction. It means 'the inheritance having been entered upon (accepted)', presupposing the legal act of accepting the inheritance (aditio hereditatis) by the heir.
  2. §41.2.23.prnisi naturaliter comprehensa — In the context of possession (possessio), 'naturaliter' (naturally) is used synonymously with physical or bodily holding (corporaliter), indicating that possession is not acquired merely by the transfer of legal rights, but requires actual de facto control.
  3. §41.2.23.1reuersis his — 'reuersis' is the ablative plural of the perfect participle 'reuersus,' forming an ablative absolute with 'his' meaning 'when they have returned.' Although it could grammatically be interpreted as a dative as the complement of 'opus sit,' it is generally taken as an ablative absolute.
  4. §41.2.23.2in mea potestate non habeo — The antecedent is 'quem' (referring to 'hominem liberum'). While the main clause verb 'possimus' is in the first-person plural, the relative clause verb 'habeo' shifts to the first-person singular. This is an expression where the writer introduces their personal perspective while stating a general rule.

Cite this passage

Justinian I, The Digest of Justinian §41.2.23.pr-41.2.23.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.2.23.pr-41.2.23.2

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