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Justinian I · The Digest of Justinian §45.3.39.pr

Stipulation for True Owner by Usufructuary Slave and Condictio

Passage 7547 of 9271 · Latin

Summary

This section explains the acquisition of property and the applicability of the condictio to recover it in cases where a slave subject to a usufruct, or one serving someone in good faith, stipulates by name for his true owner regarding what should have been acquired for his current possessor.

[IDEM libro uicensimo secundo ad Quintum Mucium. ] §45.3.39.prCum seruus, in quo usum fructum habemus, proprietatis domino ex re fructuarii uel ex operis eius nominatim stipuletur, adquiritur domino proprietatis: sed qua actione fructuarius reciperare possit a domino proprietatis, requirendum est.
[THE SAME, from the twenty-second book on Quintus Mucius.] When a slave, in whom we have a usufruct, stipulates by name for the owner of the property from the estate of the usufructuary or from his own services, it is acquired for the owner of the property; but it must be asked by what action the usufructuary can recover it from the owner of the property.
item si seruus bona fide nobis seruiat et id, quod nobis adquirere poterit, nominatim domino suo stipulatus fuerit, ei adquiret: sed qua actione id reciperare possumus, quaeremus.
Likewise, if a slave serves us in good faith and has stipulated by name for his own owner what he would have been able to acquire for us, he acquires it for him; but we shall inquire by what action we can recover it.
et non sine ratione est, quod Gaius noster dixit, condici id in utroque casu posse domino.
And it is not without reason what our friend Gaius said, that in both cases it can be recovered by condictio from the owner.

Notes

  1. §45.3.39.prex re fructuarii uel ex operis eius — These express the two grounds (from the estate of the usufructuary, or from the slave's own services) on which a slave would normally acquire property for the usufructuary. In this case, although the acquisition should conceptually belong to the usufructuary, because it was stipulated by name (nominatim) for the owner, the acquisition goes to the owner, raising the question of recovery.
  2. §45.3.39.prcondici id in utroque casu posse domino — The verb `condicere` is a technical legal term meaning 'to bring an action for enrichment (condictio)'. Here it is used as a passive infinitive `condici` ('can be recovered by condictio'), with the dative `domino` indicating the person against whom the action is brought ('from the owner'). The subject of the accusative-with-infinitive construction is `id`.

Cite this passage

Justinian I, The Digest of Justinian §45.3.39.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.3.39.pr

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