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Justinian I · The Digest of Justinian §6.1.48.pr

Bona Fide Possessor's Expenses and Plea of Fraud

Passage 1119 of 9271 · Latin

Summary

This section explains that while a bona fide possessor cannot directly recover expenses made on another's land from the donor or the owner, these expenses can be saved through an objection of fraud and the judge's office, compelling the owner to restore the excess after set-off if the land has been improved.

[PAPINIANUS libro secundo responsorum. ] §6.1.48.prSumptus in praedium, quod alienum esse apparuit, a bona fide possessore facti neque ab eo qui praedium donauit neque a domino peti possunt, uerum exceptione doli posita per officium iudicis aequitatis ratione seruantur, scilicet si fructuum ante litem contestatam perceptorum summam excedant: etenim admissa compensatione superfluum sumptum meliore praedio facto dominus restituere cogitur.
[PAPINIANUS in the second book of Responses.] Expenses incurred by a bona fide possessor on land which has appeared to belong to another cannot be recovered either from the person who donated the land or from the owner, but are preserved through the office of the judge on grounds of equity by pleading an objection of fraud, that is to say, if they exceed the sum of the fruits gathered before the joinder of issue. For, once a set-off has been admitted, the owner is compelled to restore the excess expenditure, provided the land has been made better.

Notes

  1. §6.1.48.prexceptione doli posita — An ablative absolute construction consisting of the noun 'exceptione' and the participle 'posita'. It expresses the means or condition: 'by pleading an objection of fraud (exceptio doli)'. It explains the procedural mechanism whereby the bona fide possessor, who lacks a direct action (actio) for recovery, can practically secure (seruantur) the expenses by raising this plea against the owner's claim for recovery of the land (rei uindicatio).
  2. §6.1.48.prmeliore praedio facto — An ablative absolute construction comprising the noun 'praedio', the comparative adjective 'meliore' (in the ablative), and the participle 'facto'. It expresses the condition 'only if the land has been made better'. It indicates that the mere fact of expenditure (sumptus) is insufficient; the objective value of the land must have been increased (improved) as a result, which is an essential substantive requirement to compel the owner to restore the excess (restituere cogitur).

Cite this passage

Justinian I, The Digest of Justinian §6.1.48.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:6.1.48.pr

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