[ULPIANUS libro septuagensimo secundo ad edictum. ] §43.4.1.prAit praetor: 'Si quis dolo malo fecerit, quo minus quis permissu meo eiusue, cuius ea iurisdictio fuit, in possessionem bonorum sit, in eum in factum iudicium, quanti ea res fuit, ob quam in possessionem missus erit, dabo'. §43.4.1.1Hoc edictum summa prouidentia praetor proposuit: frustra enim in possessionem mitteret rei seruandae causa, nisi missos tueretur et prohibentes uenire in possessionem coerceret.
[ULPIANUS, on the Edict, book seventy-two.] The praetor says: "If anyone has acted with malicious intent to prevent someone, by my permission or that of the person who had that jurisdiction, from being in possession of goods, I will grant an action on the facts against him, for the amount of the value of the matter on account of which he was sent into possession." The praetor proposed this edict with the greatest foresight; for it would be in vain for him to send someone into possession for the purpose of preserving property, unless he protected those sent and coerced those preventing them from entering into possession.
§43.4.1.2Est autem generale hoc edictum: pertinet enim ad omnes, qui in possessionem a praetore missi sunt: conuenit enim praetori omnes, quos ipse in possessionem misit, tueri.
Moreover, this edict is general; for it applies to all who have been sent into possession by the praetor; for it is fitting for the praetor to protect all those whom he himself has sent into possession.
sed siue rei seruandae causa siue legatorum aut uentris nomine in possessionem missi fuerint, habent ex hoc edicto in factum actionem, siue doli siue aliter prohibuerint.
But whether they have been sent into possession for the purpose of preserving property, or on account of legacies, or in the name of an unborn child, they have an action on the facts under this edict, whether they have been prevented by fraud or otherwise.
§43.4.1.3Haec actio non tantum eum tenet, qui prohibuit quem uenire in possessionem, sed etiam eum, qui possessione pulsus est, cum uenisset in possessionem: nec exigitur, ut ui fecerit qui prohibuit.
This action holds liable not only him who prevented someone from entering into possession, but also him who expelled someone from possession after he had entered into possession; nor is it required that he who prevented should have acted by force.
§43.4.1.4Si quis ideo possessione arcuerit, quia rem suam putabat uel sibi nexam uel certe non esse debitoris, consequens est, ut hoc edicto non teneatur.
If anyone has excluded another from possession for the reason that he thought the property was his own, or bound to himself, or at least did not belong to the debtor, it follows that he is not bound by this edict.
§43.4.1.5Haec uerba 'quanti ea res erit, ob quam in possessionem missus erit' continent utilitatem creditoris, ut quantum eius interest possessionem habere, tantum ei qui prohibuit condemnetur.
These words 'the value of the matter on account of which he was sent into possession' comprise the interest of the creditor, so that the person who prevented him should be condemned to him for as much as it was in his interest to have possession.
proinde si ob falsum creditum uel ob falsam petitionem missus est in possessionem uel si exceptione summoueri potuit, nihil ei debet prodesse hoc edictum, quia propter nullam causam in possessionem missus est.
Therefore, if he was sent into possession on account of a false debt or a false petition, or if he could have been defeated by an exception, this edict ought not to benefit him at all, because he was sent into possession for no cause.
§43.4.1.6Hoc edicto neque pupillum neque furiosum teneri constat, quia affectu carent.
It is established that neither a pupil nor a madman is bound by this edict, because they lack capacity of intent.
sed pupillum eum debemus accipere, qui doli capax non est: ceterum si iam doli capax sit, contra erit dicendum.
But we ought to understand as a pupil him who is not capable of fraud; but if he is already capable of fraud, the contrary must be said.
ergo et si tutor dolo fecerit, in pupillum dabimus actionem, si modo soluendo sit tutor: sed et ipsum tutorem posse conueniri Iulianus scribit.
Therefore, even if a tutor has acted with fraud, we will grant the action against the pupil, provided only that the tutor is solvent; but Julian writes that the tutor himself can also be sued.
§43.4.1.7Si domini uel patris uoluntate prohibitus quis sit a possessione, in ipsos dabitur actio, quasi per alios hoc fecerint.
If anyone has been prevented from possession by the will of a master or a father, the action will be granted against them, as if they had done this through others.
§43.4.1.8Hanc actionem excepta legatorum missione intra annum competere et non postea sciendum est, cum sit poenalis, nec in heredes similesque personas dabitur, nisi in id quod ad eas peruenit: sed heredi similibusque personis dabitur.
It must be known that this action, except for the sending into possession on account of legacies, is available within a year and not thereafter, since it is penal, nor will it be granted against heirs and similar persons, except to the extent of what has come to them; but it will be granted to the heir and similar persons.
nam cum prohibitus quis est legatorum uel fideicommissorum causa possessionem adipisci, tunc actio et perpetua est et in heredem dabitur, quia est in potestate successorum euitare interdictum satisdatione oblata.
For when someone is prevented from obtaining possession on account of legacies or fideicommissa, then the action is both perpetual and will be granted against the heir, because it is in the power of the successors to avoid the interdict by offering security.