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Justinian I · The Digest of Justinian §6.2.12.pr-6.2.12.7

Publician Action for Special Gifts and Non-Usucapable Property

Passage 1163 of 9271 · Latin

Summary

Paulus discusses the application of the Publician action in cases such as gifts between betrothed couples and restored inheritances, as well as its availability for non-usucapable lands, legally prohibited alienations, infant slaves, partial claims, and very brief periods of possession.

[PAULUS libro nono decimo ad edictum. ] §6.2.12.prCum sponsus sponsae seruum donasset eumque in dotem accepisset ante usucapionem, rescriptum est a diuo Pio diuortio facto restituendum esse seruum: nam ualuisse donationem inter sponsum et sponsam.
[PAUL on the Edict, book 19] When a fiancé had donated a slave to his fiancée and had received him as dowry before usucapion, the deified Pius issued a rescript that, upon divorce, the slave must be restored; for the donation between fiancé and fiancée was valid.
dabitur ergo et possidenti exceptio et amissa possessione Publiciana, siue extraneus siue donator possideat.
Therefore, both a defense shall be granted to the one in possession, and the Publician action to the one who has lost possession, whether a third party or the donor is in possession.
§6.2.12.1Is cui ex Trebelliano hereditas restituta est, etiamsi non fuerit nactus possessionem, uti potest Publiciana.
He to whom an inheritance has been restored under the Trebellian senatusconsult, even if he has not obtained possession, can use the Publician action.
§6.2.12.2In uectigalibus et in aliis praediis, quae usucapi non possunt, Publiciana competit, si forte bona fide mihi tradita est.
On tax land (vectigalia) and on other plots of land which cannot be acquired by usucapion, the Publician action is available, if by chance they have been delivered to me in good faith.
§6.2.12.3Idem est et si superficiariam insulam a non domino bona fide emero.
The same holds true if I have bought in good faith an apartment building subject to superficies from a non-owner.
§6.2.12.4Si res talis sit, ut eam lex aut constitutio alienari prohibeat, eo casu Publiciana non competit, quia his casibus neminem praetor tuetur, ne contra leges faciat.
If a thing is of such a nature that a law or constitution prohibits its alienation, in that case the Publician action is not available, because in these cases the praetor protects no one, so that he may not act against the laws.
§6.2.12.5Publiciana actione etiam de infante seruo nondum anniculo uti possumus.
We can use the Publician action even concerning an infant slave who is not yet one year old.
§6.2.12.6Si pro parte quis rem petere uult, Publiciana actione uti potest.
If someone wishes to claim a thing in part, he can use the Publician action.
§6.2.12.7Sed etiam is, qui momento possedit, recte hac actione experiretur.
But also he who has possessed only for a moment would rightly sue by this action.

Notes

  1. 6.2.12.prpossidenti exceptio — The verb `dabitur` (shall be granted) takes two subjects: `exceptio` (defense) and `Publiciana` [sc. *actio*] (the Publician action), connected by `et... et...`. There is a contrast between the dative present participle `possidenti` (to the one in possession) in the first clause, and the ablative absolute `amissa possessione` (possession having been lost) in the second, indicating that a defense is granted if possession is retained, while the Publician action is granted if possession is lost.
  2. 6.2.12.2In uectigalibus — This is the neuter plural ablative of the adjective `uectigalis` (subject to tax/rent), where `praediis` (lands) is omitted or understood from the following `in aliis praediis`. It refers to municipal or state lands leased for long periods or in perpetuity in exchange for a ground rent (`vectigal`). Such lands could not be acquired by ordinary usucapion, but the Publician action was extended to protect a bona fide transferee.
  3. 6.2.12.3superficiariam insulam — The adjective `superficiarius` (relating to superficies/building rights) modifies `insula` (apartment building). It refers to a building subject to a right of superficies (the right to build and use a structure on another's land). Although such buildings could not be acquired by usucapion, a bona fide purchaser was protected by the Publician action.
  4. 6.2.12.7experiretur — The third-person singular imperfect subjunctive of the deponent verb `experior` (to bring an action/sue). The subjunctive here expresses legal potentiality or a hypothetical entitlement based on the praetor's edict ("he would rightly sue" or "he would have been entitled to sue").

Cite this passage

Justinian I, The Digest of Justinian §6.2.12.pr-6.2.12.7. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:6.2.12.pr-6.2.12.7

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