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Justinian I · The Digest of Justinian §41.5.2.pr-41.5.2.2

Possession for Legacies and Prohibition on Changing Cause

Passage 6818 of 9271 · Latin

Summary

This section explains that possession for preserving legacies does not interrupt usucaption, and that the rule against changing the cause of possession applies also to natural possession, restricting tenants, depositaries, and sons from acquiring "as heir."

[IULIANUS libro quadragensimo quarto digestorum. ] §41.5.2.prQui legatorum seruandorum causa in possessionem mittitur, non interpellat possessionem eius, qui pro herede usucapit: custodiae enim causa rem tenet.
[JULIANUS, from his forty-fourth book of Digests.] A person who is put into possession for the purpose of preserving legacies does not interrupt the possession of one who is acquiring by usucaption "as heir"; for he holds the thing for the purpose of custody.
quid ergo est? etiam impleta usucapione ius pignoris retinebit, ut non prius discedat, quam si solutum ei legatum fuerit aut eo nomine satisdatum.
What, then, is the result? Even after the usucaption is completed, he will retain his right of pledge, so that he does not withdraw until the legacy has been paid to him or security has been given on that account.
§41.5.2.1Quod uolgo respondetur causam possessionis neminem sibi mutare posse, sic accipiendum est, ut possessio non solum ciuilis, sed etiam naturalis intellegatur.
The common opinion that "no one can change the cause of his own possession for himself" must be understood in such a way that possession is understood to mean not only civil but also natural possession.
et propterea responsum est neque colonum neque eum, apud quem res deposita aut cui commodata est, lucri faciendi causa pro herede usucapere posse.
And for this reason, it has been answered that neither a tenant farmer nor a person with whom a thing has been deposited or to whom it has been lent can acquire by usucaption "as heir" for the sake of making a profit.
§41.5.2.2Filium quoque donatam rem a patre pro herede negauit usucapere Seruius, scilicet qui existimabat naturalem possessionem penes eum fuisse uiuo patre.
Servius also denied that a son could acquire by usucaption "as heir" a thing given to him as a gift by his father, obviously because he estimated that natural possession was in the hands of the son during the father's lifetime.
cui consequens est, ut filius a patre heres institutus res hereditarias a patre sibi donatas pro parte coheredum usucapere non possit.
From this it follows that a son appointed as heir by his father cannot acquire by usucaption "as heir" the hereditary things given to him by his father, in respect of the shares of his co-heirs.

Notes

  1. §41.5.2.prnon prius discedat, quam si solutum — The conjunctions non prius... quam introduce a temporal limit ('not before...'), but here with the addition of the conditional 'si', they express a strong condition: 'he will not withdraw unless the legacy has been paid or security given'.
  2. §41.5.2.1Quod uolgo respondetur ... sic accipiendum est — The noun clause led by the relative pronoun 'quod' (Quod... posse) serves as the subject of the main clause. Within it, 'causam possessionis neminem sibi mutare posse' is an accusative with infinitive construction representing the legal maxim 'no one can change the cause of his own possession for himself'.
  3. §41.5.2.2uiuo patre — An ablative absolute construction consisting of the noun 'patre' and the adjective 'uiuo' without a participle, indicating the temporal circumstance: 'while the father was alive'.
  4. §41.5.2.2cui consequens est, ut — The relative 'cui' functions as a connecting dative referring to the preceding sentence ('to which'). The impersonal expression 'consequens est' ('it follows') takes the subsequent 'ut'-clause as its subject clause.

Cite this passage

Justinian I, The Digest of Justinian §41.5.2.pr-41.5.2.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.5.2.pr-41.5.2.2

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