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Justinian I · The Digest of Justinian §41.2.35.pr

Purpose of Possessory Suits and Burden of Proof in Ownership

Passage 6733 of 9271 · Latin

Summary

Explains that the purpose of a possessory dispute is first to determine the possessor, so that the defeated party will bear the burden of proof as the plaintiff in the subsequent ownership suit.

[ULPIANUS libro quinto de omnibus tribunalibus. ] §41.2.35.prExitus controuersiae possessionis hic est tantum, ut prius pronuntiet iudex, uter possideat: ita enim fiet, ut is, qui uictus est de possessione, petitoris partibus fungatur et tunc de dominio quaeratur.
[ULPIANUS, in the fifth book on all tribunals.] The outcome of a controversy over possession is only this, that the judge should first pronounce which of the two possesses; for in this way it will come about that he who has been defeated regarding possession performs the role of the plaintiff, and then inquiry is made concerning ownership.

Notes

  1. §41.2.35.pruter possideat — An indirect question clause introduced by the interrogative pronoun `uter` (which of the two), with the verb `possideat` in the present subjunctive, serving as the object of the main verb `pronuntiet`.
  2. §41.2.35.prpetitoris partibus fungatur — The verb `fungor` (to perform, discharge) governs the ablative case, and `partibus` is its ablative complement. `petitor` refers to the "plaintiff" in a proprietary action, indicating that the party defeated in the possessory suit must assume the burden of proof as plaintiff in the subsequent ownership suit.
  3. §41.2.35.prde dominio quaeratur — The third-person singular passive of `quaero` (to inquire, investigate), used impersonally to mean "an inquiry is made concerning ownership."

Cite this passage

Justinian I, The Digest of Justinian §41.2.35.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.2.35.pr

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