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Justinian I · The Digest of Justinian §41.2.43.pr-41.2.43.2

Acquisition by Long Possession of Land Subject to Third-Party Rights

Passage 6741 of 9271 · Latin

Summary

This chunk explains the possibility of acquiring a tract of land by long possession when the buyer knows a part of it belongs to another, depending on whether it is divided or undivided, and states a similar rule for properties with usufructs or pledges.

[MARCIANUS libro tertio regularum. ] §41.2.43.prSi quis fundum emerit, cuius particulam sciebat esse alienam, Iulianus ait, si pro diuiso sciat alienam esse, posse eum reliquas partes longa possessione capere: sed si pro indiuiso licet ignoret quis sit locus, aeque eum capere posse, quod sine ullius damno pars, quae putatur esse uendentis, per longam possessionem ad emptorem transit.
[MARCIANUS, in the third book of Rules.] If anyone buys a tract of land, knowing that a small part of it belongs to another, Julian says that, if he knows it belongs to another as a divided part, he can acquire the remaining parts by long possession; but if it is undivided, even though he does not know which specific part it is, he can equally acquire it, because the share which is believed to belong to the seller passes to the buyer through long possession without damage to anyone.
§41.2.43.1Sed et Pomponius scripsit libro quinto uariarum lectionum, si sciat uel putet alienum esse usum fructum, bona fide diutina possessione capere posse.
But Pomponius also wrote in the fifth book of Various Readings that, even if one knows or believes that the usufruct belongs to another, one can acquire [the property] by long possession in good faith.
§41.2.43.2Idem, inquit, et si emero rem, quam sciam pignori obligatam.
The same rule, he says, applies if I buy a thing which I know is pledged.

Notes

  1. §41.2.43.prpro diuiso ... pro indiuiso — A contrast between the state of being physically demarcated as a specific area (pro diuiso, as divided) and being an undivided co-ownership share without demarcation of a specific area (pro indiuiso, as undivided). In the former case, acquisition by long possession is allowed for the 'remaining parts' excluding the other's part; in the latter, it extends to the share believed to belong to the seller, even if the specific location is unknown.
  2. §41.2.43.prlicet ignoret — The conjunction licet ('although / even if') takes the present subjunctive ignoret to form a concessive clause. This is followed by the indirect question quis sit locus ('which place it is') as its object, containing the subjunctive sit.
  3. §41.2.43.pruendentis — The genitive of the present participle of uendere ('to sell'). Used with the verb esse, it functions as a possessive genitive: 'belonging to the seller' (literally, 'is of the seller').
  4. §41.2.43.1alienum esse usum fructum — The subject and predicate of the accusative with infinitive construction introduced by scripsit. It means that the usufruct (usum fructum) belongs to another (alienum). It is explained that even if the buyer knows or assumes that a third party holds a usufruct over the property, acquisition in good faith (bona fide capere) of the ownership itself is still possible.
  5. §41.2.43.2et si emero — emero is the future perfect indicative first-person singular, representing a hypothetical future event in the conditional clause through a first-person example. The main clause is the elliptical Idem ('the same applies'), meaning 'the same rule applies if I purchase a thing knowing it to be pledged'. sciam is the present subjunctive in the relative clause, expressing a subjective or hypothetical nuance.

Cite this passage

Justinian I, The Digest of Justinian §41.2.43.pr-41.2.43.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.2.43.pr-41.2.43.2

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