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Justinian I · The Digest of Justinian §43.26.15.pr-43.26.15.5

Scope of Precarium: Guarantees and Dual Possession

Passage 7165 of 9271 · Latin

Summary

Pomponius discusses the legal nature of precarium, explaining its equity, its scope of application, the unavailability of the interdict when a guarantee exists, and the double possession of a slave held by precarium.

[POMPONIUS libro uicensimo nono ad Sabinum. ] §43.26.15.prEt habet summam aequitatem, ut eatenus quisque nostro utatur, quatenus ei tribuere uelimus. §43.26.15.1Hospites et qui gratuitam habitationem accipiunt non intelleguntur precario habitare. §43.26.15.2Precario habere etiam ea quae in iure consistunt possumus, ut immissa uel protecta. §43.26.15.3Cum quis de re sibi restituenda cautum habet, precarium interdictum ei non competit. §43.26.15.4Eum, qui precario rogauerit, ut sibi possidere liceat, nancisci possessionem non est dubium: an is quoque possideat, qui rogatus sit, dubitatum est.
[POMPONIUS, Commentary on Sabinus, book twenty-nine.]\n\nAnd it has the highest equity, that each person should use what is ours only so far as we wish to grant it to him.\n\nGuests and those who receive free lodging are not understood to inhabit by precarium.\n\nWe can also hold by precarium those things which consist in a right, such as projecting beams or overhanging eaves.\n\nWhen someone has secured a guarantee for the restoration of a thing to him, the interdict for precarium is not available to him.\n\nThere is no doubt that he who has requested by precarium that he be allowed to possess acquires possession; but it has been doubted whether he too possesses who was requested.
placet autem penes utrumque esse eum hominem, qui precario datus esset, penes eum qui rogasset, quia possideat corpore, penes dominum, quia non discesserit animo possessione. §43.26.15.5Quo quis loco precario aut possideat aut coeperit possidere, nihil refert, quod ad hoc interdictum pertinet.
However, it is accepted that the slave who was given by precarium is in the possession of both: of the one who requested, because he possesses physically, and of the owner, because he has not departed from possession in intention.\n\nAs far as this interdict is concerned, it makes no difference in what place anyone possesses or began to possess by precarium.

Notes

  1. §43.26.15.2immissa uel protecta — These are neuter plural substantivized participles referring to urban servitudes (such as the right to insert a beam, `ius immittendi`, or the right to project eaves, `ius protegendi`). They serve as concrete examples showing that not only corporeal things but also legal rights (incorporeal things, `ea quae in iure consistunt`) can be the object of precarium.
  2. §43.26.15.4eum hominem — In Roman legal sources, `homo` is frequently used to mean a 'slave' (`servus`). Here, it refers to a slave as the object of possession. It describes an exceptional situation in the doctrine of possession where double possession is recognized: the requester (borrower) possesses 'physically' (`corpore`), while the owner (grantor) possesses 'by intention' (`animo`), meaning the slave is simultaneously in the power (`penes`) of both.
  3. §43.26.15.4possessione — An ablative of separation serving as the complement of `discesserit` (from `discedo`, 'to depart, withdraw'). Together with `animo`, it means 'to depart from possession in intention.'

Cite this passage

Justinian I, The Digest of Justinian §43.26.15.pr-43.26.15.5. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:43.26.15.pr-43.26.15.5

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