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Justinian I · The Digest of Justinian §41.6.1.pr-41.6.1.2

Requirements for Usucaption on the Ground of Gift

Passage 6821 of 9271 · Latin

Summary

The text discusses the requirements for usucaption based on a gift, emphasizing that subjective belief is insufficient without an actual gift, and addresses special cases involving gifts to sons in power, gifts between spouses, and the effect of divorce.

[PAULUS libro quinquagensimo quarto ad edictum. ] §41.6.1.prPro donato is usucapit, cui donationis causa res tradita est: nec sufficit opinari, sed et donatum esse oportet.
[PAULUS, from his fifty-fourth book on the Edict.] A person to whom a thing has been delivered for the sake of a gift acquires by usucaption "as a gift"; and it is not enough to believe so, but it must also have been given.
§41.6.1.1Si pater filio quem in potestate habet donet, deinde decedat, filius pro donato non capiet usu, quoniam nulla donatio fuit.
If a father makes a gift to a son whom he has under his power, and then dies, the son will not acquire by usucaption "as a gift", because there was no gift.
§41.6.1.2Si inter uirum et uxorem donatio facta sit, cessat usucapio.
If a gift is made between husband and wife, usucaption does not take place.
item si uir uxori rem donauerit et diuortium intercesserit, cessare usucapionem Cassius respondit, quoniam non possit causam possessionis sibi ipsa mutare: alias ait post diuortium ita usucapturam, si eam maritus concesserit, quasi nunc donasse intellegatur.
Likewise, if a husband has given a thing to his wife and a divorce has intervened, Cassius replied that usucaption does not take place, because she cannot change the cause of possession for herself. On the other hand, he says that after the divorce she will acquire by usucaption in this way, if the husband has conceded it, as if he were understood to have given it just now.
possidere autem uxorem rem a uiro donatam Iulianus putat.
However, Iulianus thinks that the wife does possess the thing given by her husband.

Notes

  1. §41.6.1.propinari — Present active infinitive of the deponent verb opinor (to think, believe), serving as the subject of the impersonal sufficit. It highlights the contrast between subjective belief (opinari) and objective reality (donatum esse).
  2. §41.6.1.2cessare — Infinitive in the accusative-and-infinitive construction (indirect statement) governed by the main verb Cassius respondit. Its subject accusative is usucapionem, expressing the opinion that usucaption ceases.
  3. §41.6.1.2usucapturam — An active future infinitive with the omission of the auxiliary verb esse (usucapturam [esse]). It is governed by ait ("he says") in indirect speech, with the subject accusative uxorem ("the wife") understood from the context.
  4. §41.6.1.2quasi nunc donasse intellegatur — The conjunction quasi ("as if") introduces a hypothetical comparison and takes the present passive subjunctive intellegatur. The subject of intellegatur is maritus (the husband), who is also the implied subject of the perfect active infinitive donasse, meaning "as if the husband were understood to have given [it] just now."

Cite this passage

Justinian I, The Digest of Justinian §41.6.1.pr-41.6.1.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.6.1.pr-41.6.1.2

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