Humanitext Reader

Justinian I · The Digest of Justinian §43.26.22.pr-43.26.22.1

Change of Possessory Title to Precarium and Requests by Wards

Passage 7172 of 9271 · Latin

Summary

Venuleius discusses the change in the cause of possession when a current possessor requests a precarium from the owner, and the validity of a request for a precarium made by a ward without the tutor's authority.

[IDEM libro tertio interdictorum. ] §43.26.22.prSi is, qui pro possessore possideret, precario dominum rogauerit, ut sibi retinere rem liceret, uel is, qui alienam rem emisset, dominum rogauerit: apparet eos precario possidere.
[THE SAME, Interdicts, book three.] If he who was possessing as a possessor should ask the owner by precarium that he be permitted to retain the thing, or if he who had bought another’s property should ask the owner: it is clear that they possess by precarium.
nec existimandos mutare sibi causam possessionis, quibus a domino concedatur precario possidere: nam et si id quod possideas alium precario rogaueris, uideri te desinere ex prima causa possidere et incipere ex precario habere: et contra si possessorem precario rogauerit qui rem auocare ei posset, teneri eum precario, quoniam aliquid ad eum per hanc precarii rogationem peruenit, id est possessio, quae aliena sit.
Nor should those to whom it is granted by the owner to possess by precarium be thought to change the cause of possession for themselves; for even if you should ask another by precarium for that which you possess, you are seen to cease possessing by your former cause and to begin to hold by precarium; and conversely, if he who could recover the thing from the possessor should ask the possessor by precarium, he is bound by precarium, since something has come to him through this request for precarium, that is, possession, which is another's.
§43.26.22.1Si pupillus sine tutoris auctoritate precario rogauerit, Labeo ait habere eum precariam possessionem et hoc interdicto teneri.
If a ward should ask by precarium without the authority of his tutor, Labeo says that he has possession by precarium and is bound by this interdict.
nam quo magis naturaliter possideretur, nullum locum esse tutoris auctoritati: recteque dici 'quod precario habes', quia quod possideat ex ea causa possideat, ex qua rogauerit: nihilque noui per praetorem constituendum, quoniam, siue habeat rem, officio iudicis teneretur, siue non habeat, non teneatur.
For since it is possessed in fact, there is no room for the authority of the tutor; and it is correctly said "what you hold by precarium," because what he possesses, he possesses by that cause under which he made the request; and nothing new should be established by the praetor, since, whether he has the thing, he would be bound by the duty of the judge, or whether he does not have it, he would not be bound.

Notes

  1. §43.26.22.prmutare sibi causam possessionis — "to change the cause of possession for themselves". This refers to a case where, despite the general rule that no one can change the cause of their possession by their own will alone (nemo sibi ipse causam possessionis mutare potest), a transition to possession by precarium is exceptionally or validly recognized because of the owner's consent (concedatur).
  2. §43.26.22.1naturaliter possideretur — "possessed in fact". This is given as the reason why the acquisition of possession by precarium does not require the tutor's authority (auctoritas) to supplement legal capacity, since it belongs to the sphere of factual relations (natural possession) rather than a strict legal transaction under the civil law.
  3. §43.26.22.1officio iudicis — "by the duty of the judge". This means that even without the praetor creating a new formula or remedy for the ward, the judge can achieve an equitable solution in an existing lawsuit through his discretion (officium), depending on whether the ward actually holds the thing or has benefited from it.

Cite this passage

Justinian I, The Digest of Justinian §43.26.22.pr-43.26.22.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:43.26.22.pr-43.26.22.1

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.