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Justinian I · The Digest of Justinian §41.3.45.pr-41.3.45.1

Public Places under Ius Gentium and Goods Held by Slaves

Passage 6797 of 9271 · Latin

Summary

Papinian explains that the prescription of long possession is not granted for public places under the law of nations, such as shores and rivers, and that usucapion of a thing held by an inheritance slave after the owner's death begins only when the inheritance is accepted.

[IDEM libro decimo responsorum. ] §41.3.45.prPraescriptio longae possessionis ad optinenda loca iuris gentium publica concedi non solet.
[THE SAME, Answers, book 10] The prescription of long possession is not customarily granted for obtaining public places under the law of nations.
quod ita procedit, si quis, aedificio funditus diruto quod in litore posuerat (forte quod aut deposuerat aut dereliquerat aedificium), alterius postea eodem loco extructo, occupantis datam exceptionem opponat, uel si quis, quod in fluminis publici deuerticulo solus pluribus annis piscatus sit, alterum eodem iure prohibeat.
This applies if anyone, after a building which he had placed on the shore has been completely destroyed (perhaps because he had pulled down or abandoned the building), and after another's building has subsequently been erected on the same site, should oppose the exception given to an occupier; or if anyone, on the ground that he alone has fished for several years in a corner of a public river, should debar another from the same right.
§41.3.45.1Post mortem domini, seruus hereditarius peculii nomine rem coepit tenere, usucapionis primordium erit tempus hereditatis aditae: quemadmodum etenim usucapietur, quod ante defunctus non possederat?
After the death of the owner, if a slave belonging to the inheritance begins to hold a thing in the name of his peculium, the beginning of the usucapion will be the time when the inheritance is accepted; for how indeed shall that be acquired by usucapion which the deceased had not possessed before?

Notes

  1. §41.3.45.pralterius postea eodem loco extructo — This is an ablative absolute construction where the noun 'aedificio' is omitted but understood with the perfect participle 'extructo' (neuter singular ablative). The genitive 'alterius' modifies the omitted 'aedificio', meaning 'after another's [building] was subsequently erected on the same site.'
  2. §41.3.45.proccupantis datam exceptionem — The genitive of the present participle 'occupantis' modifies 'exceptionem' (with the perfect participle 'datam' agreeing with 'exceptionem'), meaning 'the exception given to an occupier.' It refers to a situation where the original builder attempts to set up (opponat) a claim based on former occupancy against the new occupier (occupans) who has built on the site after the original building was destroyed and the land returned to public status.
  3. §41.3.45.1quemadmodum etenim usucapietur, quod ante defunctus non possederat? — A rhetorical question where 'usucapietur' is the third-person singular future passive verb, whose subject is the relative clause 'quod ante defunctus non possederat'. It explains rhetorically that during the period of 'lying inheritance' (hereditas iacens) before the heir accepts (aditio), a thing newly held by a slave does not succeed to the possession of the deceased (defunctus); hence, usucapion can only begin as a new possession once the heir accepts the inheritance.

Cite this passage

Justinian I, The Digest of Justinian §41.3.45.pr-41.3.45.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.3.45.pr-41.3.45.1

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