XL annor. provincial estates), but for Movables always a prescription of three years, by this time exclusively called USUCAPIO, should be introduced; both subject to the retention of the other requisites of usucapion, with full allowance, however, of the accessio possessionis." -constitutionem promulgavimus qua cautum est, ut res quidem mobiles per triennium usucapiantur, immobiles vero per longi temporis possessionem, i.e. inter praesentes decennio, inter absentes viginti annis usucapiantur, et his modis. non solum in Italia, sed in omni terra, quae nostro imperio gubernatur, dominium rerum iusta causa possessionis praecedente adquiratur.—pr. I. h. t. 2, 6.' Alongside of this, the limitation of the action of ownership as an extraordinary kind of prescription, * Sc. xxx vel longissimi temporis possessio, which existed from the time of Constantine, was still recognised by Justinian, without distinction between movables and immovables, and without reference to the capacity of the thing for usucapion; its requisite was alone bona fides on the part of the possessor, which, however, merely obtains against persons subject to Limitation of Actions. d Ec. rei vindicationem. d Quodsi quis eam rem desierit possidere, cuius dominus exceptione XXX vel XL annorum expulsus est, praedictum auxilium non indiscrete, sed cum moderata divisione ei praestare censemus, ut, si quidem bona fide ab initio rem tenuit, simili possit uti praesidio, sin vero mala fide eam 1 We have put forth a constitution with the provision that movables should be acquired by usus in the space of three years, but immovables by longi temp. poss., i.e., ten years as between parties residing in the same locality, twenty years as between parties locally separated from each other, and that ownership of things in this way should be acquired not only in Italy, but in every country subject to our sovereignty, if a legal ground exist for possession. adeptus est, indignus eo videatur.-1. 8, § 1, C. cit.' BOOK III. Pt. 1. Ch. I. ADQUISITIONES NATURALES. $82. TRADITIO." Traditio (delivery) is the yielding up of possession, that is, the grant to some one of the actual control over a thing with the agreed purpose-in pursuit of a definite, legally admissible, object of some legal transaction (iusta causa traditionis)-to transfer and to secure ownership to him. And further, taking possession with the consent of the owner falls under the notion of Tradition in the wider sense. It is not requisite that the taker acquire or retain possession which is also protected by Law. Gai. Hae quoque res, quae traditione nostrae fiunt, iure gentium nobis adquiruntur: nihil enim tam conveniens est naturali aequitati, quam voluntatem domini, volentis rem suam in alium transferre, ratam haberi.-1. 9, § 3, D. h. t. (=de A. R. D. 41, 1).* Paul. Numquam nuda traditio transfert dominium, sed ita, si venditio aut aliqua iusta causa praecesserit, propter quam traditio sequeretur.-1. 31 pr. eod.3 1 But if a person have ceased to possess such thing, the owner of which has been defeated by a plea of 30 or 40 years, we deem that the aforesaid aid shall be afforded him not indiscriminately, but with some difference, so that if indeed he have held the thing from the beginning, he can avail himself of like defence, but if he have acquired it in bad faith, he shall be considered as having no claim upon it. 2 Moreover, those things are acquired by us through the i. g. which become ours by delivery, for nothing is so conformable to natural equity as to uphold the will of the owner who desires to transfer his property to another. 3 Bare delivery never passes ownership, but only if sale or some lawful cause has preceded, by reason of which delivery followed. a Anct. Law,' p. 279. Inst. iv. 1, 41, and § 148, ad init. § 89. But see the opinion of Ulpian in D. 12, 1, 18 pr., and Dr. Walker's note Ulp. Si procurator meus vel tutor rem suam, quasi meam vel pupilli, alii tradiderint, non recessit ab eis dominium et nulla est alienatio, quia nemo errans rem suam amittit.-1. 35 eod.' : Iul. Cum in corpus quidem, quod traditur, consentiamus, in causis vero dissentiamus, non animadverto, cur inefficax sit traditio; veluti si ego credam, me ex testamento tibi obligatum esse, ut fundum tradam, tu existimes ex stipulatu tibi eum deberi: nam et si pecuniam numeratam tibi tradam donandi gratia, tu eam quasi creditam accipias, constat proprietatem ad te transire.1. 36 eod.a 2 Whilst according to Classical Law traditio was meant especially for res nec mancipi, it became in the Law of Justinian the general and unique form for the transfer of ownership. Ulp. xix. 7: Traditio propria est alienatio rerum nec mancipi.3 Cuiuscumque generis sit corporalis res, tradi potest et a domino tradita alienatur.-§ 40, I. h. t. (=de D. R. 2, 1).* Imp. Diocl.: Traditionibus et usucapionibus 1 If my agent or the guardian of a pupil have delivered to another his property as if it were mine or that of the pupil, the ownership does not pass from them, and there is no transfer, because no one loses his property by a mistake. 2 When we agree as to the object of delivery, but are disagreed as to the cause thereof, I do not see why the delivery should be inoperative. For instance, if I believe I am bound under a testament to deliver to you a field, and you think that it is due to you upon the ground of a stipulation. For so also if I deliver to you coined money with the intention of presenting it to you, and you accept it as a loan, it is settled that the ownership passes to you. 3 Traditio is a mode of transfer appropriate to res nec on the passage mancipi. in text (Selected Titt. from the 4 Every corporeal thing of whatever kind can be object of Digest, pt. ii.). delivery, and is alienated by the owner's delivery. dominia rerum, non nudis pactis" transferuntur. In the person of the transferor, traditio requires capacity for the transfer of ownership, and so: (1) Ownership, or title to alienate in the name of the owner as representative, or by one's own right. : Ulp. Traditio nihil amplius transferre potest ad eum qui accipit, quam est apud eum qui tradit. Si igitur quis dominium in fundo habuit, id tradendo transfert: si non habuit, ad eum, qui accipit, nihil transfert.-Quotiens autem dominium transfertur, ad eum qui accipit, tale transfertur, quale fuit apud eum qui tradit.-1. 20 pr., § 1, D. h. t.2 Gai. Nihil autem interest, utrum ipse dominus per se tradit alicui rem, an voluntate eius aliquis: qua ratione, si cui libera negotiorum administratio ab eo qui peregre proficiscitur permissa fuerit, et is ex negotiis rem vendiderit et tradiderit, facit eam accipientis.-1. 9, § 4 eod." Id. ii. § 64 Ex diverso adgnatus furiosi curator rem furiosi alienare potest ex lege XII tabularum; . . . item creditor pignus ex pactione, quamvis eius ea res non sit.' 1 Property in things is transferred by delivery and prescription, not by mere bargains. 2 Delivery cannot make over to the taker more than the deliverer possesses. If, accordingly, any one has had the ownership of an estate, he transfers it by delivery; if he has not had it, he transfers nothing to the taker.-But whenever ownership is transferred, it is transferred to the taker such as it was in the hands of the deliverer. 3 Now it matters not whether the owner himself deliver his property to some one, or some one by his desire. And by this principle, if any one have had the absolute management of business committed to him by a person going abroad, and he sells and delivers an article from the business, he conveys it to the taker. • Contrariwise, the agnatic curator of a lunatic is by the BOOK III. Pt. I. Ch. I. a See § 115 and note there. BOOK III. Pt. I. Ch. I. a See' Anct. Law,' pp. 245, sqq.; Black stone, ii. pp. (2) Capacity to act and power of alienation on the part of the owner. Ibid. § 62: Accidit aliquando, ut qui dominus sit, alienandae rei potestatem non habeat.1 A special kind of traditio is that in incertam personam collocata,' as in the so-called ' iactus missilium.' Gai. Hoc amplius interdum et in incertam personam collocata voluntas domini transfert rei proprietatem: ut ecce qui missilia iactat in vulgus ; ignorat enim quid eorum quisque excepturus sit, et tamen, quia vult, quod quisque exceperit, eius esse, statim eum dominum efficit.-1. 9, § 7, h. t.2 Pomp. Id quod pro derelicto habuerit, continuo meum fit, sicuti cum quis aes sparserit.— D. 41, 7, 5, 1.3 $83. OCCUPATIO." 'Occupatio' is the acquisition of ownership in a 1-9 (Steph. i. thing which is without an owner by taking possession 151-9). with intent to appropriate. Gai. Quod enim nullius est id ratione naturali occupanti conceditur.-1. 3 pr., D. h. t. (=de A. R. D. 41, 1). Twelve Tables able to alienate the property of such . . . likewise a creditor by agreement may alienate a pledge, although the thing does not belong to him. 1 It sometimes happens that he who is owner has not power of alienation. 2 Yet more, sometimes the will of the owner passes the ownership of a thing when directed towards an uncertain person; as for example, he that scatters bounty among the mob, for he does not know what each person among them will catch up, and yet because he intends that what each catches up shall belong to him, he makes him at once owner thereof. 3 That which any one has regarded as abandoned straightway becomes mine, as when some one has scattered money. For that which belongs to no one is by natural reason allowed to the person who first assumes it. |