[PAULUS libro quinquagensimo quarto ad edictum. ] §41.4.2.prPro emptore possidet, qui re uera emit, nec sufficit tantum in ea opinione esse eum, ut putet se pro emptore possidere, sed debet etiam subesse causa emptionis.
[PAULUS, Book 54 on the Edict] He possesses as a purchaser who in truth bought, and it is not sufficient merely that he is of that opinion, so as to think that he possesses as a purchaser, but there must also underlie a cause of sale.
si tamen existimans me debere tibi ignoranti tradam, usucapies.
If, however, thinking that I owe something to you, I deliver it to you who are ignorant, you will acquire it by usucapion.
quare ergo et si putem me uendidisse et tradam, non capies usu? scilicet quia in ceteris contractibus sufficit traditionis tempus, sic denique si sciens stipuler rem alienam, usucapiam, si, cum traditur mihi, existimem illius esse: at in emptione et illud tempus inspicitur, quo contrahitur: igitur et bona fide emisse debet et possessionem bona fide adeptus esse.
Why therefore, even if I think I have sold and deliver it, will you not acquire it by usucapion? Obviously because in other contracts the time of delivery is sufficient; thus, finally, if knowingly I stipulate for another's thing, I will acquire it by usucapion if, when it is delivered to me, I think it is his: but in sale also that time is inspected in which the contract is contracted: therefore he must both have bought in good faith and have obtained possession in good faith.
§41.4.2.1Separata est causa possessionis et usucapionis: nam uere dicitur quis emisse, sed mala fide: quemadmodum qui sciens alienam rem emit, pro emptore possidet, licet usu non capiat.
The cause of possession and of usucapion is separate: for one is truly said to have bought, but in bad faith: just as he who knowingly buys another's thing possesses as a purchaser, although he does not acquire it by usucapion.
§41.4.2.2Si sub condicione emptio facta sit, pendente condicione emptor usu non capit.
If a sale was made under a condition, while the condition is pending the purchaser does not acquire by usucapion.
idemque est et si putet condicionem exstitisse, quae nondum exstitit: similis est enim ei, qui putat se emisse.
And the same is true even if he thinks the condition has been fulfilled, which has not yet been fulfilled: for he is similar to him who thinks he has bought.
contra si exstitit et ignoret, potest dici secundum Sabinum, qui potius substantiam intuetur quam opinionem, usucapere eum.
On the other hand, if it has been fulfilled and he is ignorant, it can be said according to Sabinus, who looks at the substance rather than the opinion, that he acquires by usucapion.
est tamen nonnulla diuersitas, quod ibi, cum rem putat alienam, quae sit uenditoris, affectionem emptoris habeat, at cum nondum putat condicionem exstitisse, quasi nondum putat sibi emisse.
There is, however, some difference, because there, when he thinks a thing belongs to another, which in fact belongs to the seller, he has the intention of a purchaser, but when he does not yet think the condition has been fulfilled, it is as if he does not yet think he has bought for himself.
quod apertius quaeri potest, si, cum defunctus emisset, heredi eius tradatur, qui nesciat defunctum emisse, sed ex alia causa sibi tradi, an usucapio cesset.
Which can be more clearly investigated if, when the deceased had bought, it is delivered to his heir, who does not know that the deceased bought, but thinks it is delivered to him from another cause, whether usucapion ceases.
§41.4.2.3Sabinus, si sic empta sit, ut, nisi pecunia intra diem certum soluta esset, inempta res fieret, non usucapturum nisi persoluta pecunia.
Sabinus says that if it was bought in such a way that, unless the money were paid within a certain day, the thing would become unbought, he would not acquire by usucapion unless the money were fully paid.
sed uideamus, utrum condicio sit hoc an conuentio: si conuentio est, magis resoluetur quam implebitur.
But let us see whether this is a condition or an agreement: if it is an agreement, it will rather be dissolved than fulfilled.
§41.4.2.4Si in diem addictio facta sit, id est nisi si quis meliorem condicionem attulerit, perfectam esse emptionem et fructus emptoris effici et usucapionem procedere Iulianus putabat: alii et hanc sub condicione esse contractam, ille non contrahi, sed resolui dicebat, quae sententia uera est.
If an adjudication for a day is made, that is, unless someone brings a better offer, Julian thought that the sale is perfect and the fruits become the purchaser's and usucapion proceeds: others thought that this too was contracted under a condition; he said that it is not contracted conditionally but is dissolved, which opinion is true.
§41.4.2.5Sed et illa emptio pura est, ubi conuenit, ut, si displicuerit intra diem certum, inempta sit.
But also that sale is unconditional, where it is agreed that, if it should displease within a certain day, it becomes unbought.
§41.4.2.6Cum Stichum emissem, Dama per ignorantiam mihi pro eo traditus est.
When I had bought Stichus, Dama was delivered to me instead of him through ignorance.
Priscus ait usu me cum non capturum, quia id, quod emptum non sit, pro emptore usucapi non potest: sed si fundus emptus sit et ampliores fines possessi sint, totum longo tempore capi, quoniam uniuersitas eius possideatur, non singulae partes.
Priscus says that I will not acquire him by usucapion, because that which has not been bought cannot be acquired by usucapion as a purchaser: but if land is bought and wider boundaries are possessed, the whole is acquired by length of time, since its entirety is possessed, not individual parts.
§41.4.2.7Eius bona emisti, apud quem mancipia deposita erant: Trebatius ait usu te non capturum, quia empta non sint.
You bought the goods of him with whom slaves had been deposited: Trebatius says you will not acquire them by usucapion, because they were not bought.
§41.4.2.8Tutor ex pupilli auctione rem, quam eius putabat esse, emit.
A tutor, from the auction of his ward, bought a thing which he thought belonged to him.
Seruius ait posse eum usucapere: in cuius opinionem decursum est eo, quod deterior causa pupilli non fit, si propius habeat emptorem, et, si minoris emerit, tutelae iudicio tenebitur ac si alii minoris addixisset: idque et a diuo Traiano constitutum dicitur.
Servius says that he can acquire by usucapion: to whose opinion recourse was had because the condition of the ward is not made worse if he has a purchaser close at hand, and, if he bought it for less, he will be held by the action of guardianship just as if he had knocked it down to another for less: and this is said to have been established also by the divine Trajan.