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Justinian I · The Digest of Justinian §41.7.3.pr

Abandonment of an Undivided Share and of Part of a Thing

Passage 6829 of 9271 · Latin

Summary

This section addresses whether a part of a thing can be abandoned, explaining that while a co-owner can abandon his undivided share, a sole owner cannot abandon only a physical part of his property.

[MODESTINUS libro sexto differentiarum. ] §41.7.3.prAn pars pro derelicto haberi possit, quaeri solet.
[MODESTINUS, from his sixth book of Differences.] It is often asked whether a part can be regarded as abandoned.
et quidem si in re communi socius partem suam reliquerit, eius esse desinit, ut hoc sit in parte, quod in toto: atquin totius rei dominus efficere non potest, ut partem retineat, partem pro derelicto habeat.
And indeed, if a co-owner abandons his share in a common property, it ceases to be his, so that what holds for the whole holds also for a part; but the owner of an entire thing cannot bring it about that he retains a part and abandons another part.

Notes

  1. §41.7.3.prut hoc sit in parte, quod in toto — This is a correlative structure with 'hoc' and the relative pronoun 'quod'. It literally translates to 'so that what is in the whole is also in the part', showing that the rule of losing ownership by abandoning the whole applies equally to the abandonment of a co-owner's share.
  2. §41.7.3.prefficere non potest, ut — The construction 'efficere ut + subjunctive' (here 'retineat' and 'habeat') means 'to bring it about that' or 'to achieve a result that'. The subject is the owner of the entire thing (totius rei dominus), indicating that it is legally impossible to selectively abandon only a physical part of a single undivided thing.

Cite this passage

Justinian I, The Digest of Justinian §41.7.3.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.7.3.pr

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