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Justinian I · The Digest of Justinian §41.2.27.pr

Insanity of Possessor and Retention of Possession

Passage 6725 of 9271 · Latin

Summary

This text explains that if someone possessing a pasture-land by intention becomes insane, they do not lose possession during their insanity, because an insane person lacks the capacity to cease possessing by intention.

[PROCULUS libro quinto epistularum. ] §41.2.27.prSi is, qui animo possessionem saltus retineret, furere coepisset, non potest, dum fureret, eius saltus possessionem amittere, quia furiosus non potest desinere animo possidere.
[PROCULUS, in the fifth book of Epistles.] If a person, who retained possession of a pasture-land by intention, should have begun to be insane, he cannot, while he is insane, lose possession of that pasture-land, because an insane person cannot cease to possess by intention.

Notes

  1. §41.2.27.pranimo — Aptative ablative of instrument. It refers to the subjective element of possession (possessio) in Roman law, namely "the intention to possess (animus)," as opposed to the objective element of physical control (corpus). Here it points to a state where possession of a pasture-land (saltus), where physical presence is sparse, is maintained by intention alone.
  2. §41.2.27.prretineret ... fureret — Subjunctive imperfect in the relative clause and the 'dum' clause. This is due to the assimilation of mood (attractio modi) triggered by the main conditional clause `furere coepisset` (subjunctive pluperfect), or used to describe a general, hypothetical situation.
  3. §41.2.27.prdesinere animo possidere — "To cease to possess by intention." Losing possession requires a loss of intention (animus). However, since an insane person (furiosus) lacks the capacity to make new mental decisions, they cannot form the intention to abandon possession, and thus the state of possession by their previous intention continues to exist.

Cite this passage

Justinian I, The Digest of Justinian §41.2.27.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.2.27.pr

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