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Justinian I · The Digest of Justinian §49.15.29.pr

Usucapion via Peculium While in Enemy Hands

Passage 8601 of 9271 · Latin

Summary

Labeo asserts that while in the power of the enemy, one cannot acquire anything by usucapion even after returning by postliminium, but Paul counters that usucapion through a slave's peculium and the increase of an inheritance are possible even without the owner's knowledge.

[IDEM libro sexto pithanon a Paulo epitomatorum. ] §49.15.29.prSi postliminio redisti, nihil, dum in hostium potestate fuisti, usucapere potuisti.
[THE SAME, Book 6 of Plausibilities, epitomized by Paul] you have returned by postliminium, you could have acquired nothing by usucapion while you were in the power of the enemy.
PAULUS. immo si quid seruus tuus peculii nomine, dum in eo statu esses, possederit, id eo quoque tempore usucapere poteris, quoniam eas res etiam inscientes usucapere solemus et eo modo etiam hereditas nondum nato postumo aut nondum adita augeri per seruum hereditarium solet.
PAULUS. Nay rather, if your slave, while you were in that state, possessed something in the name of peculium, you will be able to acquire it by usucapion even during that time, since we are accustomed to acquire those things by usucapion even without our knowledge, and in that way even an inheritance, when a posthumous child is not yet born or when it has not yet been entered upon, is accustomed to be increased through a slave of the inheritance.

Notes

  1. 49.15.29.prusucapere potuisti — Although the perfect indicative potuisti is used, in the apodosis of a contrary-to-fact conditional, verbs expressing ability or obligation (such as possum) are regularly put in the indicative. Here it expresses the past impossibility: 'you could not have acquired by usucapion.'
  2. 49.15.29.prdum in eo statu esses — The imperfect subjunctive esses is used. While dum meaning 'while' usually takes the indicative, here the subjunctive is used because the clause is subordinate to a conditional statement (si... possederit), representing a hypothetical state (subjunctive of attraction or virtual oblique clause).
  3. 49.15.29.prnondum nato postumo — This is an ablative absolute phrase consisting of the noun postumo and the participle nato, meaning 'with the posthumous child not yet being born.' It is coordinated by aut with nondum adita, which is a participial modifier of the nominative subject hereditas, presenting two grammatically different parallel conditions under which an inheritance is in abeyance.

Cite this passage

Justinian I, The Digest of Justinian §49.15.29.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:49.15.29.pr

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