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Justinian I · The Digest of Justinian §41.3.35.pr

Usucapion of a Stolen Usufruct Slave and Action for Theft

Passage 6787 of 9271 · Latin

Summary

Discusses whether a slave whose usufruct is bequeathed can be acquired by usucapion if stolen before being possessed by the heir, and the right of the usufructuary and the heir to bring an action for theft.

[IULIANUS libro tertio ad Urseium Ferocem. ] §41.3.35.prSi homo, cuius usus fructus legatus erat, ab herede numquam possessus subreptus fuisset, quaesitum est, quia heres furti actionem non haberet, an usucapi possit.
[JULIANUS, On Urseius Ferox, book 3] If a slave, whose usufruct had been bequeathed, was stolen without ever having been possessed by the heir, it was asked whether he could be acquired by usucapion, since the heir did not have an action for theft.
Sabinus respondit nullam eius rei usucapionem esse, cuius nomine furti agi possit, agere autem furti eum, qui frui deberet, posse.
Sabinus replied that there is no usucapion of a thing on account of which an action for theft can be brought, and that he who ought to enjoy the usufruct can bring the action for theft.
quod si accipiendum est, ut fructuarius poterit uti frui: aliter enim homo in causa non perduceretur.
And this must be understood in the sense that the usufructuary will be able to use and enjoy; for otherwise the slave would not be restored to his former legal position.
sed si utenti iam et fruenti abductus homo fuerit, non solum ipse, sed etiam heres furti agere poterit.
But if the slave is taken away from someone who is already using and enjoying him, not only he himself but also the heir will be able to bring the action for theft.

Notes

  1. §41.3.35.pran usucapi possit — An indirect question clause depending on the main verb quaesitum est. It asks whether the slave can be acquired by usucapion. The core legal issue is whether a slave stolen before being possessed by the heir is classified as a "stolen thing" (res furtiva), thereby preventing usucapion.
  2. §41.3.35.pragere autem furti eum, qui frui deberet, posse — An accusative with infinitive (A.C.I.) construction introduced by Sabinus respondit. The phrase eum, qui frui deberet (the person who ought to enjoy the usufruct) acts as the subject accusative of the infinitive agere ... posse. furti is a genitive of charge, forming the idiomatic expression "to bring an action for theft" with agere.
  3. §41.3.35.prquod si accipiendum est — quod is a relative pronoun in relative connection, referring back to the previous statement. si does not introduce a simple conditional clause here but rather functions with the following ut clause to explain the rationale ("if indeed this is to be accepted in order that...").
  4. §41.3.35.prin causa non perduceretur — The phrase in causa perduci is a legal idiom meaning "to be maintained or restored to one's legal status." The subjunctive imperfect perduceretur expresses a conditional contrary-to-fact situation, with aliter (otherwise) functioning as the protasis (equivalent to "if it were not so").

Cite this passage

Justinian I, The Digest of Justinian §41.3.35.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.3.35.pr

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