[PAULUS libro quinquagensimo quarto ad edictum. ]
[PAULUS, On the Edict, book 54] Next we must speak of usucaption.
§41.3.4.prSequitur de usucapione dicere. et hoc ordine eundum est, ut uideamus, quis potest usucapere et quas res et quanto tempore.
And we must proceed in this order, so that we may see who can usucapt, and what things, and in what period of time.
§41.3.4.1Usucapere potest scilicet pater familias.
Clearly, a paterfamilias can usucapt.
filius familias et maxime miles in castris adquisitum usucapiet.
A filiusfamilias will also usucapt, especially what a soldier has acquired in the camp.
§41.3.4.2Pupillus si tutore auctore coeperit possidere, usucapit: si non tutore auctore possideat et animum possidendi habeat, dicemus posse eum usucapere.
A pupil, if he begins to possess with the authority of his tutor, usucapts; if he possesses without the authority of his tutor and has the intention of possessing, we shall say that he can usucapt.
§41.3.4.3Furiosus quod ante furorem possidere coepit, usucapit. sed haec persona ita demum usucapere potest, si ex ea causa possideat, ex qua usucapio sequitur.
A madman usucapts what he began to possess before his madness; but such a person can only usucapt if he possesses on a ground from which usucaption follows.
§41.3.4.4Seruus pro herede possidere non potest.
A slave cannot possess as an heir.
§41.3.4.5Fructus et partus ancillarum et fetus pecorum, si defuncti non fuerunt, usucapi possunt.
Fruits, the offspring of female slaves, and the young of cattle, if they did not belong to the deceased, can be usucapted.
§41.3.4.6Quod autem dicit lex Atinia, ut res furtiua non usucapiatur, nisi in potestatem eius, cui subrepta est, reuertatur, sic acceptum est, ut in domini potestatem debeat reuerti, non in eius utique, cui subreptum est.
Moreover, what the Lex Atinia says, namely, that a stolen thing is not usucapted unless it returns into the power of the person from whom it was stolen, is understood in this sense, that it must return into the power of the owner, and not necessarily into the power of him from whom it was stolen.
igitur creditori subrepta et ei, cui commodata est, in potestatem domini redire debet.
Therefore, a thing stolen from a creditor or from one to whom it was lent must return into the power of the owner.
§41.3.4.7Labeo quoque ait, si res peculiaris serui mei subrepta sit me ignorante, deinde eam nanctus sit, uideri in potestatem meam redisse: commodius dicitur, etiamsi sciero, redisse eam in meam potestatem (nec enim sufficit, si eam rem, quam perdidit ignorante me, seruus adprehendat): si modo in peculio eam esse uolui: nam si nolui, tunc exigendum est, ut ego facultatem eius nactus sim.
Labeo also says that if a thing belonging to my slave's peculium is stolen without my knowledge, and then he obtains it, it is considered to have returned to my power; but it is more suitably said that, even if I know, it has returned to my power (for it is not sufficient if the slave merely seizes the thing which he lost without my knowledge), provided that I wished it to remain in his peculium; for if I did not so wish, then it is required that I myself have obtained the control of it.
Ideoque §41.3.4.8si seruus meus rem mihi subripuerit, deinde eandem loco suo reponat, poterit usucapi, quasi in potestatem meam redierit, utique si nescii: nam si sciui, exigimus, ut redisse sciam in meam potestatem.
Therefore, if my slave steals a thing from me, and then replaces it in its proper place, it can be usucapted, as if it had returned into my power, at any rate if I did not know; for if I did know, we require that I know that it has returned into my power.
§41.3.4.9Item si eam rem, quam seruus subripuerit, peculiari nomine teneat, non uideri in potestatem meam reuersam Pomponius ait, nisi ita habere coeperimus, quemadmodum habuimus, antequam subriperetur, aut, cum rescissemus, in peculio eum habere concessimus: item Labeo.
Likewise, if a slave holds a thing which he stole as part of his peculium, Pomponius says that it is not considered to have returned into my power, unless we begin to hold it in the same manner as we held it before it was stolen, or, when we found out, we permitted him to have it in his peculium; Labeo is of the same opinion.
§41.3.4.10Si rem, quam apud te deposueram, lucri faciendi causa uendideris, deinde ex paenitentia redemeris et eodem statu habeas: siue ignorante me siue sciente ea gesta sint, uideri in potestatem meam redisse secundum Proculi sententiam, quae et uera est.
If you sell a thing which I had deposited with you, for the sake of making a profit, and then out of repentance buy it back and hold it in the same condition, whether these things were done without my knowledge or with my knowledge, it is considered to have returned to my power according to the opinion of Proculus, which is also correct.
§41.3.4.11Si pupilli res subrepta sit, sufficere dicendum est, si tutor eius sciat redisse eam in domum pupilli: et si furioso, sufficere curatores scire.
If a pupil's thing is stolen, it must be said to be sufficient if his tutor knows that it has returned to the pupil's house; and in the case of a madman, it is sufficient that his curators know.
§41.3.4.12Tunc in potestatem domini redisse dicendum est, cum possessionem eius nactus sit iuste, ut auelli non possit, sed et tamquam suae rei: nam si ignorans rem mihi subreptam emam, non uideri in potestatem meam reuersam.
It must be said that a thing has returned into the power of the owner then, when he has obtained possession of it lawfully, so that it cannot be torn away from him, and moreover as if it were his own property; for if, being ignorant, I buy a thing stolen from me, it is not considered to have returned into my power.
§41.3.4.13Sed et si uindicauero rem mihi subreptam et litis aestimationem accepero, licet corporaliter eius non sim nactus possessionem, usucapietur.
But also, if I have claimed a thing stolen from me and received the valuation of the suit, although I have not obtained physical possession of it, it will be usucapted.
§41.3.4.14Idem dicendum est etiam, si uoluntate mea alii tradita sit.
The same must be said also if it has been delivered to another with my consent.
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