Humanitext Reader

Justinian I · The Digest of Justinian §41.3.49.pr

Usucapion of Stolen Property and Pledges Stolen by Owners

Passage 6801 of 9271 · Latin

Summary

Labeo states the rule that stolen property cannot be acquired by usucapion until it returns to the owner's power, to which Paul adds an exception: if the owner steals a pledged object from the pledgee, usucapion becomes possible as soon as it returns to the power of the pledgee.

[LABEO libro quinto pithanon a Paulo epitomatorum. ] §41.3.49.prSi quid est subreptum, id usucapi non potest, antequam in domini potestatem peruenerit.
[LABEO, Book 5 of Probabilities, epitomized by Paul] If anything has been stolen, it cannot be acquired by usucapion before it has come into the power of its owner.
PAULUS: immo forsitan et contra: nam si id, quod mihi pignori dederis, subripueris, erit ea res furtiua facta: sed simul atque in meam potestatem uenerit, usucapi poterit.
PAULUS: Nay, perhaps even the contrary is true; for if you steal that which you have given to me in pledge, that thing will have become stolen property; but as soon as it comes into my power, it can be acquired by usucapion.

Notes

  1. §41.3.49.prin domini potestatem — Meaning "into the power of the owner." This refers to the rule that stolen property (res furtiva) cannot be acquired by usucapion, but this defect is cured once the property returns to the control of its original owner (reversio in potestatem domini), making it eligible for usucapion again.
  2. §41.3.49.prquod mihi pignori dederis, subripueris — Refers to the act where the debtor (owner) himself takes back the pledged property delivered to the creditor (pledgee). In Roman law, even for the owner, taking away one's own property lawfully possessed by another constitutes "theft of possession" (furtum possessionis), and the property becomes stolen property (res furtiva).
  3. §41.3.49.prin meam potestatem — Meaning "into my power," i.e., into the hands of the pledgee (creditor). Paul points out an exception to Labeo's general rule of "the owner's power" (domini potestas): in a case where the owner (debtor) himself committed the theft, the defect of the stolen property is cured when it returns to the hands of the victim of the theft, namely the pledgee ("me"), rather than the owner.

Cite this passage

Justinian I, The Digest of Justinian §41.3.49.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.3.49.pr

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