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Justinian I · The Digest of Justinian §41.3.43.pr-41.3.43.1

Effect of Bad Faith on Usucapion by Heirs and Fathers

Passage 6795 of 9271 · Latin

Summary

This fragment discusses whether the heir of a good-faith purchaser can acquire property by usucapion, distinguishing cases where possession is delivered directly to the heir from those of continuous possession, and states that a father cannot acquire property bought by his son if either of them had knowledge of its defect.

[IDEM libro uicesimo secundo quaestionum. ] §41.3.43.preres eius, qui bona fide rem emit, usu non capiet sciens alienum, si modo ipsi possessio tradita sit: continuatio uero non impedietur heredis scientia.
[THE SAME, Questions, book 22] The heir of one who bought a thing in good faith will not acquire it by usucapion if he knows that it belongs to another, provided that possession was delivered to himself; however, the continuation of possession will not be prevented by the heir's knowledge.
§41.3.43.1Patrem usu non capturum, quod filius emit, propter suam uel filii scientiam certum est.
It is certain that a father will not acquire by usucapion what his son has bought, because of either his own or his son's knowledge.

Notes

  1. §41.3.43.prsi modo ipsi possessio tradita sit — This conditional clause refers to a situation where the deceased had not yet acquired possession during his lifetime, and possession was delivered for the first time to the heir. In this case, the heir must be in good faith at the commencement of his possession; if he knows it belongs to another (sciens alienum), usucapion is barred. If the deceased had already acquired possession, the rule of 'continuatio' in the second clause applies.
  2. §41.3.43.1Patrem usu non capturum ... propter suam uel filii scientiam — The accusative and infinitive construction 'Patrem... non capturum [esse]' depends on 'certum est'. The phrase 'propter suam uel filii scientiam' (because of his own or his son's knowledge) indicates a cumulative requirement: if either the father (the head of the household who acquires the right) or the son (the subordinate who performs the transaction) has knowledge of the defect (scientia), the father's usucapion is barred.

Cite this passage

Justinian I, The Digest of Justinian §41.3.43.pr-41.3.43.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.3.43.pr-41.3.43.1

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