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Justinian I · The Digest of Justinian §47.2.25.pr-47.2.25.2

Inapplicability of Theft to Land and Severed Things

Passage 7886 of 9271 · Latin

Summary

The passage discusses how an action for theft cannot be brought concerning immovable land itself, but addresses whether a condictio for possession can be brought when someone is forcibly ejected, and confirms that an action for theft indeed lies for things severed and taken from the land.

[ULPIANUS libro quadragesimo primo ad Sabinum. ] §47.2.25.prUerum est, quod plerique probant, fundi furti agi non posse.
[ULPIANUS in the forty-first book on Sabinus.] It is true, as most writers approve, that an action for theft cannot be brought in respect of land.
§47.2.25.1Unde quaeritur, si quis de fundo ui deiectus sit, an condici ei possit qui deiecit.
Hence it is asked, if anyone has been forcibly ejected from a tract of land, whether a condictio can be brought against the one who ejected him.
Labeo negat: sed Celsus putat posse condici possessionem, quemadmodum potest re mobili subrepta.
Labeo says no; but Celsus thinks that possession can be recovered by condictio, just as it can be when a movable thing is stolen.
§47.2.25.2Eorum, quae de fundo tolluntur, ut puta arborum uel lapidum uel harenae uel fructuum, quos quis furandi animo decerpsit, furti agi posse nulla dubitatio est.
There is no doubt that an action for theft can be brought in respect of those things which are taken away from a tract of land, such as trees, stones, sand, or fruits which someone has plucked with the intention of stealing.

Notes

  1. 47.2.25.prfundi — Genitive case, modifying the action `furti agi` ("to bring an action for theft of a tract of land"). Since real property (land) is immovable, an action for theft (actio furti) cannot be brought concerning land itself.
  2. 47.2.25.1an condici ei possit qui deiecit — An indirect question clause introduced by `an`. `condici` is the passive infinitive of `condicere` (to bring a condictio/personal action for recovery), used impersonally. `ei` is the dative of reference, with `qui deiecit` (the one who ejected) as its antecedent.
  3. 47.2.25.2Eorum — Genitive plural neuter (the pronoun modified by the relative clause `quae de fundo tolluntur`). It functions as a genitive of relation/charge modifying the phrase `furti agi posse` ("that an action for theft can be brought in respect of those things").
  4. 47.2.25.2quos — Relative pronoun in the accusative plural masculine. Its antecedent is specifically the immediately preceding masculine noun `fructuum` (of fruits), or potentially refers to the whole list, but the meaning of the verb `decerpsit` (plucked/harvested) associates it particularly with "fruits."

Cite this passage

Justinian I, The Digest of Justinian §47.2.25.pr-47.2.25.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:47.2.25.pr-47.2.25.2

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