78

Ownership ex jure Quiritium and in bonis.

modo contractae nihil eorum recipiunt. nam quod mihi ab aliquo debetur, id si velim tibi deberi, nullo eorum modo quibus res corporales ad alium transferuntur id efficere possum ; sed opus est, ut iubente me tu ab eo stipuleris: quae res efficit, ut a me liberetur et incipiat tibi teneri: quae dicitur novatio obligationis. (39.) sine hac vero novatione non poteris tuo nomine agere, sed debes ex persona mea quasi cognitor aut procurator meus experiri.

40. Sequitur ut admoneamus aput peregrinos quidem unum esse dominium: ita aut dominus quisque est, aut dominus non intellegitur. Quo iure etiam populus Romanus olim utebatur: aut enim ex iure Quiritium unusquisque dominus erat, aut non intellegebatur dominus. set postea divisionem accepit dominium, ut alius possit esse ex iure Quiritium dominus, alius in bonis habere. (41.) nam si tibi rem mancipi neque mancipa

ever way they be contracted, admit of none of these (forms of transfer). For if I desire that a thing which is owed to me by a certain person should be owed to you, I cannot bring this about by any of those methods whereby corporeal things are transferred to another: but it is necessary that you should by my order stipulate (for the thing) from him, and the result produced by this is that he is set free from me and begins to be bound to you: this is called a novatio of the obligation'. 39. But without such novation you cannot bring a suit in your own name, but must sue in my name as my cognitor or procurator.

40. The next point for us to state is that amongst foreigners there is but one kind of ownership: thus a man is either owner (absolutely) or is not regarded as owner (at all). And this rule. the Roman people followed of old, for a man was either owner ex jure Quiritium, or he was not regarded as owner. But afterwards ownership became capable of division, so that one man might be owner ex jure Quiritium, another hold in bonis. 41. For if I neither mancipate nor pass by cessio in jure, but

1 III. 176.

2 A cognitor is an agent appointed in court and in the presence of the other party to the suit: a procurator is appointed by mandate, and the

opposing party has not necessarily any knowledge of his appointment till the time comes for him to act. IV. 83, 84.

vero neque in iure cessero, sed tantum tradidero, in bonis quidem tuis ea res efficitur, ex iure Quiritium vero mea permanebit, donec tu eam possidendo usucapias: semel enim impleta usucapione proinde pleno iure incipit, id est et in bonis et ex iure Quiritium, tua res esse, ac si ea mancipata vel in iure cessa esset. (42.) Usucapio autem mobilium quidem rerum anno completur, fundi vero et aedium biennio; et ita lege XII tabularum cautum est.

43. Ceterum etiam earum rerum usucapio nobis competit quae non a domino nobis traditae fuerint, sive mancipi sint eae res sive nec mancipi, si modo ea bona fide acceperimus, cum crederemus eum qui tradiderit dominum esse. (44.) Quod ideo receptum videtur, ne rerum dominia diutius in incerto essent: cum sufficeret domino ad inquirendam rem suam anni aut biennii spatium, quod tempus ad usucapionem possessori tributum est.

merely deliver to you, a res mancipi, the thing becomes yours indeed in bonis but remains mine ex jure Quiritium, until through possessing it you acquire it by usucapion: for as soon as usucapion is completed the thing is at once yours in full title, i.e. both in bonis and ex jure Quiritium, just as though it had been mancipated or passed by cessio in jure. 42. Now the usucapion of moveable things is completed in a year, that of land and buildings in two years: and it is so laid down in a law of the Twelve Tables'.

43. Moreover usucapion runs for us even in respect of those things which have been delivered to us by one not the owner, whether they be res mancipi or nec mancipi, provided only we have received them in good faith, believing that he who delivered them was the owner. 44. This seems to have become a custom in order to prevent the ownership of things being too long in doubt: inasmuch as the space of one or two years would be enough for the owner to make enquiries after his property, and that is the time allowed to the possessor for gaining the property by usucapion.

1 "Usus-auctoritas fundi biennium, ceterarum rerum annus esto." Tab. VI. 1. 3. Quoted by Cic. Top. IV. 23.

See also Cic. pro Caecina, § 54; Ulp. XIX. 8. For the alteration of the times of usucapion see Just. Inst. 11. 6.

45. Set aliquando etiamsi maxime quis bona fide alienam rem possideat, numquam tamen illi usucapio procedit, velut si qui rem furtivam aut vi possessam possideat; nam furtivam lex XII tabularum usucapi prohibet, vi possessam lex Iulia et Plautia. (46.) Item provincialia praedia usucapionem non recipiunt. (47.) Item olim mulieris quae in agnatorum tutela erat res mancipi usucapi non poterant, praeterquam si ab ipsa tutore auctore traditae essent: idque ita lege XII tabularum cautum erat. (48.), Item liberos homines et res sacras et religiosas usucapi non posse manifestum est.

49. Quod ergo vulgo dicitur furtivarum rerum et vi possessarum usucapionem per legem XII tabularum prohibitam esse, non eo pertinet, ut ne ipse fur quive per vim possidet, usu

45. But sometimes, although a man possess a thing most thoroughly in good faith, yet usucapion will never run for him, for instance if a man possess a thing stolen or taken possession of by violence for a law of the Twelve Tables1 forbids a stolen thing to be gotten by usucapion, and the Lex Julia et Plautia does the same for a thing taken possession of by violence. 46. Provincial lands also do not admit of usucapion3. 47. Likewise, in olden times the res mancipi of a woman who was in the tutelage of her agnates could not be gotten by usucapion, except they had been delivered by the woman herself with the authorization of her tutor*: and this was so provided by a law of the Twelve Tables". 48. It is clear also that free men and sacred and religious things cannot be gotten by usucapion.

49. The common saying, that usucapion of things stolen or taken possession of by violence is prohibited by the law of the Twelve Tables, does not mean that the thief himself or possessor by violence cannot get by usucapion (for usu

1 Tab. VIII. 1. 17.

3 The two requisites of a possession which will enable usucapion, are bona fides and justa causa. The latter is deficient in the present example, for although the goods are in the possession of an innocent alienee, yet they came to him from one wrongfully possessed. See § 49 below.

3 In the case of provincial lands the dominium was reserved to the Roman people, therefore obviously no private holder could avail himself of usucapion to acquire dominium.

4 Cic. pro Flacco, c. 84. Cic. ad Att. I. 5.

5 Tab. v. 1. 2.

capere possit (nam huic alia ratione usucapio non competit, quia scilicet mala fide possidet); sed nec ullus alius, quamquam ab eo bona fide emerit, usucapiendi ius habeat. (50.) Unde in rebus mobilibus non facile procedit, ut bonae fidei possessori usucapio competat, quia qui alienam rem vendidit et tradidit furtum committit; idemque accidit, etiam si ex alia causa tradatur. Set tamen hoc aliquando aliter se habet. nam si heres rem defuncto commodatam aut locatam vel aput eum depositam, existimans eam esse hereditariam, vendiderit aut donaverit, furtum non committit. item si is ad quem ancillae ususfructus pertinet, partum etiam suum esse credens vendiderit aut donaverit, furtum non committit; furtum enim sine affectu furandi non committitur. aliis quoque modis accidere potest, ut quis sine vitio furti rem alienam ad aliquem transferat et efficiat, ut a possessore usucapiatur. (51.) Fundi quoque

capion does not avail for him on another account, namely that he possesses in bad faith :) but that no one else has the right of usucapion, even though he buy from him in good faith. 50. Whence, in respect to moveable things, it does not easily happen that usucapion will avail for a possessor in good faith, because he who has sold and delivered a thing belonging to another, commits a theft: and the same rule holds also if it be delivered on any other ground'. Sometimes, however, it is otherwise; for if an heir thinking that a thing lent or let to the deceased or deposited with him is a part of the inheritance, has sold or given it away, he commits no theft. Likewise, if he to whom the usufruct of a female slave belongs, thinking that her offspring is also his, sells it or gives it away, he commits no theft, for theft is not committed without the intent of thieving. It may happen in other ways also that a man may without the taint of theft deliver a thing belonging to another to a third person, and cause it to be gained through usucapion by the possessor. 51. A man may also obtain possession without

1 Any other ground than sale, sc. 2 D. 41. 3. 36. pr.

3 II. 197. We see from this that the Roman lawyers excused mistakes of law as well as fact. The reason why this particular mistake was ex

cused is shown in D. 41. 3. 36. The usufructuary supposes he has a right to the fructus of the ancilla, because the usufructuary of a flock of sheep has a right to the young of that flock.

alieni potest aliquis sine vi possessionem nancisci, quae vel ex negligentia domini vacet, vel quia dominus sine successore decesserit vel longo tempore afuerit. nam si ad alium bona fide accipientem transtulerit, poterit usucapere possessor; et quamvis ipse qui vacantem possessionem nactus est, intellegat alienum esse fundum, tamen nihil hoc bonae fidei possessori ad usucapionem nocet, cum inprobata sit eorum sententia qui putaverint furtivum fundum fieri posse.

52. Rursus ex contrario accidit, ut qui sciat alienam rem se possidere usucapiat: velut si rem hereditariam cuius possessionem heres nondum nactus est, aliquis possederit; nam ei concessum est usucapere, si modo ea res est quae recipit violence of the land of another, which is vacant either through the carelessness of the owner, or because the owner has died without a successor, or has been absent for a long time'. If then he transfer it to another, who receives it in good faith, this second possessor can get it by usucapion: for although the man himself who has taken the vacant possession, may be aware that the land belongs to another, yet this is no hindrance to the bona fide possessor's gaining it by usucapion, inasmuch as the opinion of those lawyers has been set aside who thought that land could be the subject of a theft.

52. Again, in the converse case, it sometimes happens that he who knows that he is in possession of a thing belonging to another may yet acquire an usucaptive title to it. For instance, if any one takes possession of an item of an inheritance of which the heir has not yet obtained possession3: for he is allowed

1 This paragraph is cited almost as it stands in D. 41. 3. 37, being there stated as taken from Gaii Lib. II. Institut. Laws 36 and 38, which are also very similar to §§ 50 and 52, are noted as taken from Gaii Lib. II. Rerum quotidianarum sive Aureo

rum.

2 The first taker is deficient in bona fides, but not so the second. On the principle laid down in II. 44 the possession of the first is sufficient to establish justa causa when the transfer is made to the second. Hence the second has both the requisites of civilis possessio (possession,

that is to say, which will enable usucapion), viz. justa causa and bona fides.

3 In the case of a vacant inheritance, that is, one of which the heir had not yet taken possession, the Roman law permitted any one to enter and in time to acquire an usucaptive title, which was technically called pro herede. In this case as neither bona fides nor good title at starting were necessary, the causa might really be founded on unfair motives; hence to use Gaius's phraseology it was an "improba possessio et usucapio."