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Justinian I · The Digest of Justinian §41.3.36.pr-41.3.36.1

Usucapion of Another's Property Disposed by Mistake

Passage 6788 of 9271 · Latin

Summary

The text explains how a thing belonging to another can be acquired by usucapion by a good-faith possessor due to various errors, such as an heir alienating a deposited item thinking it is part of the inheritance, or a usufructuary alienating the offspring of a female slave under the mistaken belief that it belongs to him.

[GAIUS libro secundo rerum cottidianarum siue aureorum. ] §41.3.36.prPotest pluribus modis accidere, ut quis rem alienam aliquo errore deceptus tamquam suam uendat forte aut donet et ob id a bonae fidei possessore res usucapi possit: ueluti si heres rem defuncto commodatam aut locatam uel apud eum depositam existimans hereditariam esse alienauerit.
[GAIUS, Everyday Matters or Golden Words, book 2] It can happen in many ways that someone, deceived by some error, sells or perhaps gives away a thing belonging to another as if it were his own, and thereby the thing can be acquired by usucapion by a possessor in good faith: as, for example, if an heir, thinking that a thing lent, let on hire, or deposited with the deceased is part of the inheritance, has alienated it.
§41.3.36.1Item si quis aliqua existimatione deceptus crediderit ad se hereditatem pertinere, quae ad eum non pertineat, et rem hereditariam alienauerit, aut si is, ad quem usus fructus ancillae pertinet, partum eius existimans suum esse, quia et fetus pecudum ad fructuarium pertinet, alienauerit,
Likewise, if someone, deceived by some false belief, has believed that an inheritance belongs to him which does not belong to him, and has alienated a thing belonging to the inheritance; or if he to whom the usufruct of a female slave belongs, thinking that her offspring is his own—because the offspring of cattle also belongs to the usufructuary—has alienated it.

Notes

  1. §41.3.36.praccidere, ut — The `ut` clause following the impersonal construction `potest accidere` (it can happen) functions as a substantive clause of result serving as the subject of the verb.
  2. §41.3.36.prdefuncto commodatam — `defuncto` (to the deceased) is a dative governed by the participles `commodatam` and `locatam`. In contrast, the co-ordinated participle `depositam` is modified by the prepositional phrase `apud eum` (with him).
  3. §41.3.36.1partum eius existimans suum esse — `eius` is the genitive referring to the female slave (`ancillae`). `suum esse` is an accusative with infinitive clause serving as the object of `existimans`. The `quia` clause explains the reason for the usufructuary's mistaken belief (by analogy with the rule that the offspring of cattle belongs to the usufructuary) and modifies `existimans`.

Cite this passage

Justinian I, The Digest of Justinian §41.3.36.pr-41.3.36.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.3.36.pr-41.3.36.1

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