[PAPINIANUS libro uicensimo tertio quaestionum. ] §41.2.44.prPeregre profecturus pecuniam in terra custodiae causa condiderat: cum reuersus locum thensauri memoria non repeteret, an desisset pecuniam possidere, uel, si postea recognouisset locum, an confestim possidere inciperet, quaesitum est.
[PAPINIANUS, in the twenty-third book of Questions.] A man who was about to travel abroad had buried money in the earth for the purpose of safe-keeping; when he returned, he could not recall by memory the place of the treasure, and the question was asked whether he had ceased to possess the money, or, if he subsequently recognized the place, whether he immediately began to possess it.
dixi, quoniam custodiae causa pecunia condita proponeretur, ius possessionis ei, qui condidisset, non uideri peremptum, nec infirmitatem memoriae damnum adferre possessionis, quam alius non inuasit: alioquin responsuros per momenta seruorum, quos non uiderimus, interire possessionem.
I said that since it was proposed that the money was buried for the sake of safe-keeping, the right of possession did not seem to be destroyed for him who had buried it, nor did the weakness of memory bring about the loss of a possession which no one else had invaded; otherwise, one would have to answer that the possession of slaves whom we have not seen for a moment perishes.
et nihil interest, pecuniam in meo an in alieno condidissem, cum, si alius in meo condidisset, non alias possiderem, quam si ipsius rei possessionem supra terram adeptus fuissem.
And it makes no difference whether I buried the money in my own land or in another's, since, if another had buried it in my land, I would not possess it otherwise than if I had obtained possession of the thing itself above ground.
itaque nec alienus locus meam propriam aufert possessionem, cum, supra terram an infra terram possideam, nihil intersit.
Therefore, another's land does not take away my own possession, since it makes no difference whether I possess above ground or below ground.
§41.2.44.1Quaesitum est, cur ex peculii causa per seruum ignorantibus possessio quaereretur.
The question was asked why possession was acquired through a slave by those who were ignorant of it, on account of the peculium.
dixi utilitatis causa iure singulari receptum, ne cogerentur domini per momenta species et causas peculiorum inquirere.
I said that this was accepted under a special rule for the sake of utility, so that masters should not be forced at every moment to inquire into the items and causes of their peculia.
nec tamen eo pertinere speciem istam, ut animo uideatur adquiri possessio: nam si non ex causa peculiari quaeratur aliquid, scientiam quidem domini esse necessariam, sed corpore serui quaeri possessionem.
However, that case does not extend so far as to make it seem that possession is acquired by intention alone; for if something is acquired not on account of the peculium, the knowledge of the master is indeed necessary, but possession is acquired through the physical body of the slave.
§41.2.44.2Quibus explicitis, cum de amittenda possessione quaeratur, multum interesse dicam, per nosmet ipsos an per alios possideremus: nam eius quidem, quod corpore nostro teneremus, possessionem amitti uel animo uel etiam corpore, si modo eo animo inde digressi fuissemus, ne possideremus: eius uero, quod serui uel etiam coloni corpore possidetur, non aliter amitti possessionem, quam eam alius ingressus fuisset, eamque amitti nobis quoque ignorantibus.
Having explained these matters, when the question is about losing possession, I would say that it makes a great difference whether we possess through ourselves or through others; for indeed, of that which we hold by our own body, possession is lost either by intention or even by body, provided that we departed from there with the intention of not possessing; but of that which is possessed through the body of a slave or even of a tenant, possession is not lost otherwise than if someone else has entered upon it, and this is lost even without our knowledge.
illa quoque possessionis amittendae separatio est. nam saltus hibernos et aestiuos, quorum possessio retinetur animo,
There is also that distinction in losing possession: for winter and summer pastures, the possession of which is retained by intention,