Humanitext Reader

Justinian I · The Digest of Justinian §41.2.40.pr-41.2.40.3

Possession on Tenant Death and Subsequent Concealment

Passage 6738 of 9271 · Latin

Summary

This section discusses ejection by a pledgee's slave, the continuation of possession after a tenant's death, the relationship between subsequent concealment and secret possession, and whether an owner can be deemed to possess his own property secretly.

[AFRICANUS libro septimo quaestionum. ] §41.2.40.prSi de eo fundo, quem, cum possiderem, pignori tibi dedi, seruus tuus te deiciat, adhuc te possidere ait, quoniam nihilo minus per ipsum seruum possessionem retineas.
[AFRICANUS, in the seventh book of Questions.] If, from that land which, while I possessed it, I gave to you in pledge, your slave should eject you, he says that you still possess it, since you nonetheless retain possession through that very slave.
§41.2.40.1Si forte colonus, per quem dominus possideret, decessisset propter utilitatem receptum est, ut per colonum possessio et retineretur et contineretur: quo mortuo non statim dicendum eam interpellari, sed tunc demum, cum dominus possessionem apisci neglexerit.
If by chance a tenant, through whom an owner possessed, should have died, it has been accepted for utility's sake that possession is both retained and continued through the tenant; upon whose death it must not be said that it is immediately interrupted, but only then, when the owner has neglected to acquire the possession.
aliud existimandum ait, si colonus sponte possessione discesserit.
He says it must be thought otherwise if the tenant has voluntarily departed from possession.
sed haec ita esse uera, si nemo extraneus eam rem interim possederit, sed semper in hereditate coloni manserit.
But these things are true only if no stranger has possessed the thing in the meantime, but it has always remained in the estate of the tenant.
§41.2.40.2Seruum tuum a Titio bona fide emi et traditum possedi, deinde cum comperissem tuum esse, ne eum peteres, celare coepi.
I bought your slave in good faith from Titius and possessed him after delivery; then, when I had found out that he was yours, I began to hide him so that you would not claim him.
non ideo magis hoc tempore clam possidere uideri me ait: nam retro quoque, si sciens tuum seruum non a domino emerim et, cum clam eum possidere coepissem, postea certiorem te fecerim, non ideo desinere me clam possidere.
He says that I am not on that account more likely to be seen as possessing secretly at this time; for in the past also, if knowingly I should have bought your slave not from the owner, and, having begun to possess him secretly, I should afterwards have informed you, I would not on that account cease to possess secretly.
§41.2.40.3Si seruum meum bonae fidei emptori clam abduxerim, respondit non uideri me clam possidere, quia neque precarii rogatione neque conductione suae rei dominum teneri et non posse causam clandestinae possessionis ab his duabus causis separari.
If I should have secretly taken away my own slave from a good faith purchaser, he answered that I am not seen to possess secretly, since an owner is bound neither by a request for a precarious holding nor by a lease of his own property, and the cause of secret possession cannot be separated from these two causes.

Notes

  1. §41.2.40.prper ipsum seruum possessionem retineas — The phrase 'you retain possession through that very slave' indicates that even if a slave (who holds natural possession) physically ejects the master, the master's intent and capacity for possession remain, meaning that in law, possession is still retained through the agency of that slave.
  2. §41.2.40.1quo mortuo non statim dicendum eam interpellari — The phrase 'quo mortuo' is an ablative absolute with a relative connection. 'eam' refers to 'possessio' and serves as the subject of the accusative and infinitive clause dependent on the impersonal gerundive 'dicendum [esse]'.
  3. §41.2.40.2non ideo magis hoc tempore clam possidere uideri me ait — According to the principle of the immutability of the cause of possession (causa possessionis), a possession begun in good faith and openly does not turn into a secret possession (clam possessio) even if the possessor subsequently acts in bad faith and begins to hide the object. This is contrasted with the reverse case in the following sentence ('nam retro quoque...'), where a possession begun secretly does not cease to be secret even if the owner is subsequently notified.
  4. §41.2.40.3quia neque precarii rogatione neque conductione suae rei dominum teneri — Here, 'suae rei dominum' is the subject of the infinitive and 'teneri' is the passive infinitive. It demonstrates the legal principle that an owner cannot be bound by a request for a precarious holding (precarium) or by a lease (conductio) over his own property, explaining why recapturing one's own property secretly from another does not create the defect of secret possession.

Cite this passage

Justinian I, The Digest of Justinian §41.2.40.pr-41.2.40.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.2.40.pr-41.2.40.3

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.