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Justinian I · The Digest of Justinian §42.5.12.pr-42.5.12.2

Effects of Possession Orders and Impossibility of Entry

Passage 6961 of 9271 · Latin

Summary

Paulus discusses the legal effect of a request by one creditor to enter into possession of the debtor's estate on all creditors, its exceptions, the jurisdiction of the order, and cases of impossibility of possession.

[PAULUS libro quinquagesimo nono ad edictum. ] §42.5.12.prCum unus ex creditoribus postulat in bona debitoris se mitti, quaeritur, utrum solus is qui petit possidere potest, an, cum unus petit et praetor permisit, omnibus creditoribus aditus sit.
[Paul, on the Edict, book 59]\n\nWhen one of the creditors requests to be put in possession of the debtor's estate, the question is raised whether only the one who makes the request can possess, or, when one requests and the praetor has granted permission, access is open to all creditors.
et commodius dicitur, cum praetor permiserit, non tam personae solius petentis, quam creditoribus et in rem permissum uideri: quod et Labeo putat.
And it is more appropriately said that when the praetor has granted permission, it is to be seen as granted not so much to the person of the requester alone as to the creditors and to the case itself; which Labeo also thinks.
nec uidebitur libera persona adquirere alii, quia nec sibi quicquam adquirit, cui praetor permittit, sed aliquid ex ordine facit: et ideo ceteris quoque prodest.
Nor will a free person be seen to acquire for another, because he for whom the praetor permits does not acquire anything even for himself, but does something in accordance with the procedure; and therefore it also benefits the others.
plane si is postulauerit, qui creditor non est, minime dicendum est uel eum, qui creditor est, possidere posse, quia nihil egit talis postulatio: aliter atque si creditor, cui permissum est possidere, postea recepit debitum suum: ceteri enim poterunt peragere bonorum uenditionem. §42.5.12.1Is, qui possidere iubetur, eo loco iussus uidetur, cuius cura ad iubentem pertinet. §42.5.12.2Si propter naturam rei (ueluti si praedium inundatum sit) aut propter latronum potentiam non potest possidere, recte dicitur non esse quod possideatur.
Clearly, if someone who is not a creditor makes the request, it is by no means to be said that even one who is a creditor can possess, because such a request has accomplished nothing; this is different from the case where a creditor, who was permitted to possess, subsequently received his debt, for the others will be able to complete the sale of the goods.\n\nHe who is ordered to possess is deemed to be ordered at that place, the care of which belongs to the one who orders.\n\nIf, due to the nature of the thing (as, for instance, if a piece of land is flooded) or due to the power of robbers, he cannot possess, it is rightly said that there is nothing to be possessed.

Notes

  1. §42.5.12.prin rem — In the contrast non tam personae... quam creditoribus et in rem, it indicates that the permission is granted not just to the specific person of the petitioner (in personam) but to all creditors and with respect to the matter or property itself (in rem).
  2. §42.5.12.prlibera persona — This refers to the classical Roman law rule that one cannot acquire rights through an independent free person (per liberam personam nobis adquiri non potest). Here, it is explained that since the creditor who enters into possession under the praetor's decree does not acquire anything for himself but acts according to legal procedure, this does not violate the rule, and the benefit extends to other creditors.
  3. §42.5.12.2quod possideatur — quod is a relative pronoun introducing a relative clause of characteristic with the subjunctive possideatur (present passive), meaning "something to be possessed" or "something that can be possessed."

Cite this passage

Justinian I, The Digest of Justinian §42.5.12.pr-42.5.12.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.5.12.pr-42.5.12.2

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