Humanitext Reader

Justinian I · The Digest of Justinian §41.3.27.pr

Requirement of Real Legal Cause for Usucapion

Passage 6779 of 9271 · Latin

Summary

Celsus argues that good faith possession is insufficient for usucapion without a real legal basis (such as sale, gift, legacy, or payment of litis aestimatio), rejecting subjective belief alone.

[IDEM libro trigensimo primo ad Sabinum. ] §41.3.27.prCelsus libro trigensimo quarto errare eos ait, qui existimarent, cuius rei quisque bona fide adeptus sit possessionem, pro suo usucapere eum posse nihil referre, emerit nec ne, donatum sit nec ne, si modo emptum uel donatum sibi existimauerit, quia neque pro legato neque pro donato neque pro dote usucapio ualeat, si nulla donatio, nulla dos, nullum legatum sit.
[THE SAME, On Sabinus, book 31] Celsus, in his thirty-fourth book, says that those are in error who think that, in regard to any property of which a person has acquired possession in good faith, he can usucapt it "as his own" (pro suo), and that it makes no difference whether he bought it or not, or whether it was given to him or not, provided only he believed that it was bought by or given to him; because usucapion "as a legacy" (pro legato), "as a gift" (pro donato), or "as a dowry" (pro dote) is not valid if there is in fact no gift, no dowry, and no legacy.
idem et in litis aestimatione placet, ut, nisi uere quis litis aestimationem subierit, usucapere non possit.
The same rule is accepted also in the case of the payment of the estimated value of a lawsuit (litis aestimatio), so that unless a person has truly undergone the estimation of the lawsuit, he cannot usucapt.

Notes

  1. 41.3.27.prcuius rei quisque bona fide adeptus sit possessionem — The genitive of the relative pronoun, 'cuius', modifies 'possessionem'. This relative clause contains its own antecedent and functions as a concessive/conditional clause ('whichever thing's possession one has acquired in good faith'), subordinate to the accusative-with-infinitive clause 'pro suo usucapere eum posse'.
  2. 41.3.27.prpro suo — One of the legal titles (titulus) for usucapion, meaning 'as one's own'. Here, it highlights the strict classical view that subjective belief alone (putative title) is insufficient for usucapion in the absence of an objective legal transaction (such as sale or gift).
  3. 41.3.27.prlitis aestimatione — The monetary assessment or valuation of a lawsuit paid by the defendant in lieu of returning the property. By undergoing this payment, the defendant gains a position analogous to a buyer, which serves as a title for usucapion; however, this requires that the defendant 'truly' (uere) underwent the payment.

Cite this passage

Justinian I, The Digest of Justinian §41.3.27.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.3.27.pr

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