Justinian I · The Digest of Justinian §8.4.13.pr-8.4.13.1

Restrictions on Sea Use and Quarrying on Private Land

Passage 1460 of 9271 · Latin

Summary

Ulpian explains that while a servitude cannot be imposed on the sea by private contract, the good faith of the agreement binds the parties and their successors, and he discusses the prohibition of unauthorized quarrying except where a custom of paying compensation to the owner exists.

[ULPIANUS libro sexto opinionum. ] §8.4.13.prUenditor fundi Geroniani fundo Botriano, quem retinebat, legem dederat, ne contra eum piscatio thynnaria exerceatur.

[ULPIANUS, Opinions, book 6] The seller of the Geronian estate had imposed a condition in favor of the Botrian estate, which he retained, that tunny fishing should not be carried on against it.

quamuis mari, quod natura omnibus patet, seruitus imponi priuata lege non potest, quia tamen bona fides contractus legem seruari uenditionis exposcit, personae possidentium aut in ius eorum succedentium per stipulationis uel uenditionis legem obligantur.

Although a servitude cannot be imposed on the sea by a private condition, since the sea is by nature open to all, yet because the good faith of the contract demands that the condition of the sale be observed, the persons of those possessing or succeeding to their right are bound by the condition of the stipulation or sale.

§8.4.13.1Si constat in tuo agro lapidicinas esse, inuito te nec priuato nec publico nomine quisquam lapidem caedere potest, cui id faciendi ius non est: nisi talis consuetudo in illis lapidicinis consistat, ut si quis uoluerit ex his caedere, non aliter hoc faciat, nisi prius solitum solacium pro hoc domino praestat: ita tamen lapides caedere debet, postquam satisfaciat domino, ut neque usus necessarii lapidis intercludatur neque commoditas rei iure domino adimatur.

If it is established that there are stone quarries on your land, no one who does not have the right to do so can quarry stone against your will, either on private or public account: unless such a custom exists in those quarries that if anyone wishes to quarry from them, he may not do so otherwise than by first paying the customary compensation for this to the owner. Nevertheless, he must quarry the stones, after satisfying the owner, in such a way that neither the use of the necessary stone is blocked nor the convenience of the property is lawfully taken away from the owner.

Notes

8.4.13.prcontra eum — The referent of the accusative pronoun eum is the Botrian estate (fundo Botriano), which is the antecedent of the preceding relative clause quem retinebat (which he retained). This refers to a special condition (lex) that tunny fishing should not be conducted on the side of the sold Geronian estate in a way that harms the interests of the Botrian estate retained by the seller.
8.4.13.prpersonae possidentium — An expression emphasizing in personam liability (obligantur). Since the sea (mare) is a common thing (res communis) open to all, a real right of servitude (seruitus) cannot be imposed. However, based on the good faith of the contract (bona fides contractus), the condition of sale (lex uenditionis) can bind the 'persons' (personae) of those possessing the land or their successors under contract law.
8.4.13.1ita tamen lapides caedere debet... ut neque... neque... — A correlative construction of ita... ut..., introducing an adverbial clause of limitation: 'he must quarry the stones under the condition that neither... nor...'. It demonstrates that even if the right to quarry is granted upon payment of compensation, it is strictly limited so as not to damage the owner's necessity or the objective utility of the property.

Cite this passage

Justinian I, The Digest of Justinian §8.4.13.pr-8.4.13.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:8.4.13.pr-8.4.13.1

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