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Justinian I · The Digest of Justinian §47.2.20.pr-47.2.20.1

Substitution of Pledged Goods and Theft of One's Own Property

Passage 7881 of 9271 · Latin

Summary

The text explains whether substituting materials in a pledge transaction constitutes theft, and discusses the owner's liability for theft against a good-faith purchaser or usufructuary, along with its implications for usucapion.

[PAULUS libro nono ad Sabinum. ] §47.2.20.prCum aes pignori datur, etiamsi aurum esse dicitur, turpiter fit, furtum non fit.
[PAULUS in the ninth book on Sabinus.] When bronze is given in pledge, even if it is said to be gold, a base act is committed, but theft is not committed.
sed si datum est aurum, deinde, cum dixisset se ponderare aut obsignare uelle, aes subiecit, furtum fecit: rem enim pignori datam interuertit.
But if gold was given, and then, after he had said that he wished to weigh or seal it, he substituted bronze, he has committed theft; for he has embezzled the thing given in pledge.
§47.2.20.1Si bona fide rem meam emeris eamque ego subripuero, uel etiam tuus usus fructus sit et eam contrectauero, tenebor tibi furti actione, etsi dominus rei sum.
If you should buy my property in good faith and I take it away surreptitiously, or even if the usufruct is yours and I lay hands on it, I shall be liable to you in an action for theft, even though I am the owner of the property.
sed his casibus usucapio quasi furtiuae rei non impedietur, quoniam et si alius subripiat et in meam potestatem reuersa res fuerit, usucapiebatur.
But in these cases, usucapion will not be prevented as if of a stolen thing, since even if another should steal it and the thing has returned into my power, it was capable of being acquired by usucapion.

Notes

  1. 47.2.20.prturpiter fit — An impersonal expression meaning "a morally reprehensible act is committed" or "a base thing is done." In this context, offering bronze under the pretense that it is gold may constitute fraud (dolus), but since there is no unlawful handling (contrectatio) of another's property, it does not amount to "theft" (furtum) in the strict sense of civil law.
  2. 47.2.20.printeruertit — Meaning "to embezzle," "appropriate," or "divert." Here it refers to the act of substituting bronze for the gold that had already been given as a pledge, thereby surreptitiously taking back the gold. This act constitutes an unlawful handling (contrectatio) of the creditor's possession, which is the basis for establishing theft.
  3. 47.2.20.1contrectauero — Future perfect of the verb contrectare ("to handle" or "touch"). This is a technical legal term in Roman law, indicating that for theft (furtum) to be established, there must be an actual physical handling or meddling with the object (contrectatio), rather than a mere subjective intent.
  4. 47.2.20.1quasi furtiuae rei — A genitive phrase modifying usucapion (usucapio). While stolen things (res furtiuae) are prohibited from being acquired by usucapion under Roman law (e.g., the Law of the Twelve Tables and Lex Atinia), this phrase implies that when the owner himself steals the property (from a good-faith purchaser or usufructuary), the property is not treated as permanently tainted like a typical "stolen thing," and usucapion is not barred in the same way because the taint can be purged.

Cite this passage

Justinian I, The Digest of Justinian §47.2.20.pr-47.2.20.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:47.2.20.pr-47.2.20.1

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