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possessionem per quos possimus, secundo commentario rettulimus; nec ulla dubitatio est, quin animo possessionem ap'isct non possimus.
154. Recuperandae possessionis causa solet interdictum dari, si quis vi deiectus sit. nam ei proponitur interdictum cuius principium est: Unde Tu Illum Vi Deiecist1. per quod is qui deieci/ cogitur ei restituere rei possessionem, si modo is qui deiectus est nec vi nec clam nec precario possidet ab adver
acquire possession we have stated in the second commentary': and there is no doubt that we cannot acquire possession by mere will*.
154. An interdict for recovering possession is generally granted when a man has been forcibly ejected. For there is set forth for his benefit the interdict which commences with the words: " Unde lu illum vi drjecisti":" by means of which the ejector is compelled to restore the possession of the thing, provided only he who was ejected did not get the possession from his adversary4 by violence, clandestinity, or sufferance:
elements make up the factum, the latter is the animus.
Possession, he says, is retained by the same conjunction of animus and factum, but neither need be so strongly developed as for acquisition. There need not be an active will to hold the thing, but the mere absence of a will to cease to hold it is enough; and the factum is not the absolute power to deal with the thing, but the ability to reproduce that power at will, coupled with a knowledge that we have such power of reproduction. See Savigny's Treatise on Possession, translated by Perry, passim. The reading of this passage which Heffter suggests agrees with Savigny's view. His reading is: "Unde etiam placuit ut quoniam possidemus animo solo, quando voluerimus reversuri abire, retinere possessionem videamur."
1 и. 89. 94.
2 Although we can retain possession by merely having the power of reproduction of the original factum, which Gaius calls "by mere will,"
animo solo; yet to acquire possession, the factum, as stated in the note above, must be of a much more marked character, viz. an actual power of dealing.
3 This is fully explained in Savigny's Treatise, Bk. IV. § 42 ; where the amount of violence necessary to found a claim for its benefit, and the question of self-redress are also entered into.
The interdict ran on "id illi restituas," i.e. "Restoie to him that from which you have ejected him."
* There is another reading adversus alterum. and if we adopt it, the passage will run : "provided the person ejected did not get possession as against the other by force, clandestinity, or sufferance." There is much to be said for this reading, for it is a well-known principle that the possessor was not liable under the interdict, if his wrongful dealing had been directed against a person different from the applicant for the same.
Simple and double Ititerdids. 331
sario: quod si aut vi aut clam aut precario poss«lent, impune deicitur. (155.) Interdum tamen etiam ei quem vi deiecerim, quamvis a me aut vi aut clam aut precario possideret, cogar rei restituere possessionem, velut si armis vi eum deiecerim: nam Praetor [desunt 4 /z«.].
156. Tertia divisio interdictorum in hoc est, quod aut simrAicia sunt aut duplicia: (157.) simplicia velut in quibus alter actor, alter reus est: qualia sunt omnia rejtitutoria aut exhibitoria. nam actor est qui desiderat aut exhiberi aut restitui, reus is est a quo desideratur ut exhibeat aut restituat. (158.) Prohibitoriorum autem interdictorum alia duplicia, alia simplicia sunt. (159.) Simplicia sunt veluti quibus prohibet Praetor in loco sacro aut in flumine publico ripave eius aliquid facere
but if he did get the possession by violence, clandestinity, or sufferance, he is ejected with impunity1. 155. Sometimes, however, I should be compelled to restore possession of the thing to a person whom I had ejected, even though he had got the possession from me by violence, clandestinity, or sufferance, for instance, if I ejected him forcibly with arms";
for the Praetor3
156. A third division of interdicts is based on the fact that they are simple or double. 157. Those are simple, for instance, where one party is plaintiff and the other defendant: of which kind are all restitutory or exhibitory interdicts. For the plaintiff is he who requires that the thing be produced or restored, and the defendant is he at whose hands the production or restoration is required. 158. But of prohibitory interdicts some are double, some are simple. 159. Those are simple, for instance, in which the Praetor prohibits the defendant from doing something in a sacred place, or in a public river, or on its bank: for here the plaintiff is he who
1 See Savigny's Treatise, p. 331. 3 It is not improbable, as Heffter
The possessor who was ejected by suggests, that Gaius in this lost part
any of the three modes named, could is speaking of the interdict unde vi
immediately repossess himself, and being employed against the heirs of
his original possession was considered the wrong-doer. The word heredes
by the law to have never been dis- does appear in the lacuna, and the
turbed. See Paulus, S. R. V. 6. 7. fact that the heirs were liable is
1 See Savigny's Treatise, p. 344, stated in D. 43. 16. 1. 48, D. 43.
Cic. pro Tullio, c. 44, Cic. pro Caec. 16. 3. pr., D. 43. I*'j. 18. c. 3».
332 Double Interdicts, Uti possidetis and Utrubi.
/-eum: nam actor Ы qui desiderat ne quid fiat, reus is qui aliquid facere conatur. (160.) Duplicia sunt, velut Uti PossiDetis interdictum et Utrubi. ideo autem duplicra vocantur, quia par utriusque litigatoris in his condicio est, nec quisquam praecipue reus vel actor intelligitur, sed unusquisque tam rei quam actoris partes sustinet : quippe Praetor pari sermone cum utroque loquitur, nam summa conceptio eorum interdictorum haec est: Uti .nunc Possidetis, Quominus Ita Possideatis Vim Fieri Veto, item alterius: Utrubi Hic Homo De Quo Agitur,
APUD QUEM MAIORE PARTE HUIUS ANNI FUIT, QUOMINUS IS EUM DUCAT VIM FIERI VETO.
161. Expositis generibus interdictorum sequitur ut de ordine et de exitu eorum dispiciamus; et incipiamus a siwzplicibus. (162.) Si igitur restitutorium vel exhibitorium interdictum redditur, velut ut restituatur ei possessio qui vi deiectus est, aut exhibeatur libertus cui patronus operas indicere vellet, modo
desires that the thing be not done, and the defendant is he who attempts to do it. 160. The double are such as the interdicts Ûtipossidetis and Utrubi: which are called " double" from the fact that the position of each litigant in respect of them is the same, and that neither is regarded as being specially defendant or plaintiff, but each sustains the character of defendant and plaintiff at once, inasmuch as the Praetor addresses both in like language. For the general drawing of these interdicts is as follows: "I forbid violence to be employed to prevent you from possessing in the manner you now possess." So also in the case of the other interdict: "I forbid violence to be employed to prevent that man, whether of the two he be, with whom the slave who is the matter of action has been during the greater part of this year, from taking possession of him."
161. Having now explained the different kinds of interdicts, our next task is to consider their process and result: and let us begin with the simple interdicts. 162. If then a restitutory or exhibitory interdict be granted, for instance, that possession shall be restored to one who has been forcibly ejected, or that a libertus shall be produced' to whom his patron wishes to appoint his services, the matter is brought
1 Sc. by means of a special inter- pus, was a process for bringing up 3ict, "de libero homine exhibendo," the body of a freeman who was under »Inch, like our writ of Habeas Cor- detention. "The special object of Formula arbitraria. 333
sine periculo res ad exitum perducitur, modo cum periculo. (163.) namque si arbitrum postulaverit is cum quo agitur, accipit formulam quae appellatur arbitraria. nam iudzVis arbitrio si quid restitui vel exh/ber/ debeat, \d sine poena, exhibet vel restituit, et ita absolvitur : quod si nec restituat neque exhibeat, quantx ea res est condemnatur. sed actor quoque sine pcena experitur cum eo quem neque exhibere neque restituere quicquam oportet, nisi calumniae zudicium ei opposkum fu<?rit. diversae quidem scholae auctoribus placet prohibendum calumniae iudicio eum qui arbitrum postulaverit, quasi hoc ipso confessus videatwr, restituere se vel exhibere debere. sed alio iure utimur, et recte: namque sine ullo timore ne superetur, arbitrum quisque postularepotest. (164.) Ceterum observare debet is qui voiet arbitrum petere, ut statira petat, antequam ex iure exeat, id est antequam a Yraetore disceiaX: sero evim\ petentibus non indulgeft/w. (165.) Itaque si arbitrum non petierit, sed
to a result sometimes without risk, sometimes with risk. 163. For if the defendant have demanded an arbiter, he receives the formula of the kind called arbitraria; and then, if by the award of the judex he be bound to restore or produce something, he restores or produces it without any penalty, and so is freed from liability: but if he do not restore or produce it, he is condemned to pay its value. The plaintiff, too, takes proceedings against a man who is not under obligation to produce or restore anything without making himself liable to any penalty, unless a suit for caiumnia' be instituted against him. The authorities of the opposite school think, however, that a defendant who has demanded an arbiter is barred from instituting a suit for calumnia, since by the very fact (of demanding an arbiter) he seems to have made admission that he ought to restore or produce something2. But we very properly follow the other rule, for a man may demand an arbiter without being under any apprehension of losing his case. 164. He who wishes to demand an arbiter, ought to be careful to do so before going out of court, that is, before he leaves the Praetor's presence3; for if people make the demand at a later stage, it will not be granted. 165. Hence,
the interdict," says Ulpian, "was to l IV. 174, 175.
defend liberty and to prevent free * The argument resembles that in
men from being held in restraint;" IV. 114.
but it answered the purpose speci- 3 A similar warning is given in
fied in the text also. D. 43. 29. 1. IV. so.
334 Fructus Licit atio.
/aci/us de iure exierit, cum periculo res ad exitum perducitur. nam actor provocat adversarium sponsione: Ni centra edictuva. Praetoris non exhi\>uer\X aut non re%titwerit: ille autem adversus sponsionem adversarii restipulatur. deinde actor quidem sponsionis JormiAam edit adversario; i//e ^uic invicem restipulationis. sed actor sponsions formulae subicit et aliud iudicium de re restituenda vel exhibenda, ut si sponsione vicerit, nisi ei res exhibeatur ant restituatur adversarius quanti ea res sit condemnetur—[desu?it 48 Jineaé].
166. Postquam igitur Praetor interdictum reddidit, primum litigatorum alterutrius res ab eo fructuw licitando ret tantis/гг in possessione constituitur, si modo adversario suo fructuaria stipu
if the defendant do not ask for an arbiter, but go out of court without speaking, the matter is carried on to its issue "with risk." For the plaintiff challenges his opponent with a sponsion: "Unless he have not failed to produce or restore in violation of the Praetor's edict :" and the latter again makes a restipulation in reply to his adversary's sponsion. Then the plaintiff serves his opponent with a formula in claim of his sponsion; and the defendant in his turn serves the other with a formula in claim of his restipulation. But the plaintiff tacks on to the formula in claim of the sponsion another precept for an issue to decide on the obligation (of the defendant) to restore or produce, so that if he succeed in his sponsion, and the thing be not produced or restored, [his opponent shall be condemned for the value of the thing] 1.
166. Now after the Praetor has granted an interdict, first of all the matter in dispute is put for the interim into the possession of one or other of the litigants according to the
1 Hollweg suggests the reading which stipulations were tacked on to
which we have translated within the the sponsions and really contained
brackets: it is obvious that the sen- the gist of the case. tence must have ended in some such Hence in his Treatise on Posses
manner. sion (Book IV. g 36), Savigny says
It will be observed that the pro- that unless the defendant on an inceedings are identical with those de- terdict admitted the plaintiff's described in IV. 93 the sponsio being mand, the process on the interdict in both cases prejudicial only and became identical with that in an orintended to lead up to a decision on dinary action.
the stipulation, pro praede litis et See Cic. pro Caecina, 8, pro Tull,
'•indiciarum in the one case, de re 53. tstituenda vel exhibenda in the other,