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Justinian I · The Digest of Justinian §41.2.38.pr-41.2.38.2

Intent Regarding Absent Slaves and Conditional Possession

Passage 6736 of 9271 · Latin

Summary

Julius discusses the timing of the intention to abandon possession when writing to an absent slave, conditional delivery of possession, and the acquisition of possession of hereditary property through a slave delivered to an heir via a contract of sale or other obligations.

[IULIANUS libro quadragensimo quarto digestorum. ] §41.2.38.prQui absenti seruo scribit, ut in libertate moretur, non eam mentem habet, ut statim uelit serui possessionem dimittere, sed magis destinationem in id tempus conferre, quo seruus certior factus fuerit.
[JULIANUS, in the forty-fourth book of the Digests.] A person who writes to his absent slave that he may remain in freedom does not have the intention of wishing to immediately abandon possession of the slave, but rather of deferring his determination to that time when the slave shall have been informed.
§41.2.38.1Si quis possessionem fundi ita tradiderit, ut ita demum cedere ea dicat, si ipsius fundus esset, non uidetur possessio tradita, si fundus alienus sit.
If anyone has delivered possession of a tract of land in such a way as to say that he yields it only if the land were his own, possession is not deemed to have been delivered if the land is someone else's.
hoc amplius existimandum est possessiones sub condicione tradi posse, sicut res sub condicione traduntur neque aliter accipientis fiunt, quam condicio exstiterit.
Furthermore, it must be held that possessions can be delivered under a condition, just as things are delivered under a condition and do not otherwise become the property of the recipient than when the condition has been fulfilled.
§41.2.38.2Si is, qui Titio seruum uendiderat, heredi eius eum tradiderit, poterit heres rerum hereditariarum possessionem per eum adprehendere, quia non seruus iure hereditario, sed actio ex empto ad eum peruenit: nam et si ex stipulatu uel ex testamento seruus testatori debitus fuisset et heres eum accepisset, non prohiberetur rerum hereditariarum possessionem per eundem adquirere.
If he who had sold a slave to Titius delivers him to his heir, the heir will be able to acquire possession of the hereditary property through him, because not the slave by hereditary right, but the action on purchase passed to him: for even if the slave had been owed to the testator by stipulation or by will and the heir had received him, he would not be prevented from acquiring possession of the hereditary property through the same slave.

Notes

  1. §41.2.38.prdestinationem in id tempus conferre — The infinitive `conferre` can be understood as depending on `habet` (supplying `mentem habet... conferre`, "has the intention to defer") or as parallel to `uelit` inside the `ut`-clause. Here, `destinationem` refers to the determination or resolution to relinquish possession, which is deferred to the moment the slave actually receives the notice.
  2. §41.2.38.1cedere ea — `ea` is the feminine ablative singular demonstrative referring back to `possessionem` (`ea possessione`). The verb `cedere` here takes the ablative to mean "to withdraw from" or "to yield," thus meaning "to withdraw from the possession of the land."
  3. §41.2.38.1accipientis fiunt — The genitive `accipientis` (the recipient) is used predicatively with the verb `fiunt` to denote ownership ("become the property of the recipient").
  4. §41.2.38.2non seruus iure hereditario, sed actio ex empto — This explains why the heir can acquire possession of other hereditary property through the slave. It sets up a contrast showing that the slave himself was not acquired directly by inheritance (`iure hereditario`), but was delivered on the basis of the action on purchase (`actio ex empto`), thus allowing him to serve as an instrument for acquiring possession.

Cite this passage

Justinian I, The Digest of Justinian §41.2.38.pr-41.2.38.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.2.38.pr-41.2.38.2

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