APPENDIX

 Case Analysis of D 41.1.5.1 (Case 8)

(limited to the issue of acquiring possession)

I.    Facts:

A hunter has so wounded a wild animal that it can be caught, and he begins to pursue the animal.

II.    Legal Issue:

Has the hunter already acquired possession (and therewith also ownership) of the animal by wounding and following it?

III.    Discussion:

The treatment of the legal question is a subject of juristic controversy: Trebatius decides for immediate possession and ownership.

I.   Concerning the Opinion of Trebatius

Trebatius supports the interpretation that the wounding of the animal, such that it becomes possible to catch it, constitutes a sufficient physical relationship for the acquisition of possession. By following the animal, this physical relationship cre­ates a legal right.

Trebatius gives no explicit reasoning for his decision. From the text it is clear that he had before him a case in which a hunter was on the point of a seemingly certain successful chase, when another person took the wounded animal for him­self, before the hunter could grab it.

If one tries to find support for the interpretation of Trebatius in other Roman jurists, s/he should try to refer to a series of case decisions in which Roman jurists acknowledge possession without the need for touching (or grasping) the property. So, for example, Celsus in D 41.2.18.2 (Case 2) is on point: i.e., the transferor can deliver possession of a neighboring plot of land by pointing it out from a tower belonging to the transferee, without the transferee having to step on the land. Another example of this kind of acquisition of possession is in the statement ofJavolenus that the creditor takes possession of money which the debtor sets down before his eyes and at his command (Case 3: D 46.3.7.9). The jurist defines this event as traditio longamanu [“delivery with a long hand”]. Finally, Paul in D 41.2.1.21 (Case 4) makes a general formulation that agreement in the presence of the property is sufficient for transferring possession; touching or grasping the property is not necessary. Here, however, one must note that in these cases derivative possession is involved, not original possession, as in D 41.1.5.1 [Case 8]. With derivative possession the previ­ous possessor is transferring an established condition of possession. With the original possession of the hunter, however, there is a situation in which legitimate claimants stand in a rival relationship with the property.

The case that is closest in facts and decision to the present case is that of the boar, decided by Proculus at D 41.1.55 (Case 9). In that case, a wild boar has been caught in a snare that was set out. Proculus lets the person who set the snare, according to the circumstances, obtain possession of the boar even before actually grasping it. For his decision it is crucial whether one can infer that the boar had come into the potestas (sphere of control) of the person who laid the snare. This will be the situation, if the boar is firmly caught and cannot free itself from the snare, and if the snare in addition has been put in a place where the inter­ference of another person is not to be expected.

Still, it remains questionable whether Proculus would have decided that the wounded animal was in the potestas of the pursuing hunter, like the boar in the snare of the snare-setter.

II.   Concerning the Opinion of Gaius

The expounders of the dominant doctrine (plerique), whom Gaius joins, set forth stricter requirements of physical relationship than does Trebatius. They feel that in the course of the hunter's pursuit much can happen (multa accidere possunt) that would block the capture. Therefore they do not grant the hunter possession through wounding and pursuit of the animal, until the animal is actually caught.

What might Gaius have understood with the reasoning: quia multa acciderepos­sunt [“because much can happen”]? For one thing, the animal might possibly escape the grasp of the pursuer by fleeing into impassable terrain (a hole, thicket, etc.).

This interpretation can also be supported by the boar-case of Proculus: if the boar could free itself from the snare by more struggle, or the snare was placed where the intervention of another person is to be imagined, say on public land or on private land without the owner's consent, Proculus does not let the snare-setter acquire possession.

The Digest text at D 41.2.33 (Case 100) requires an especially close physical relationship for acquiring possession of buried treasure-trove. Paul there repro­duces the opinion of Sabinus, who thinks a landowner cannot acquire possession of buried treasure-trove before he moves it; previously he does not have it in his control (custodia), even though it was buried on his land.

The decisional rationale of Gaius and the dominant doctrine (quia multa acci­dere possunt) can also be supported by the principle that Javolenus formulates at D 41.2.2.2 (Case 55): expectation of duration is a prerequisite for acquiring possession. The person who runs the risk that the property will soon be outside of his control will not be deemed a possessor.

III.   Considerations of Legal Policy

When Trebatius recognizes possession and ownership for the hunter who has wounded an animal so that it can be caught, he is rewarding efforts undertaken to bring the goods of untamed nature to human consumption. Rival efforts from this time forward can be resisted as impermissible invasions of existing rights.

Gaius and the dominant doctrine hinder the premature segregation of goods, which are available for appropriation by anyone (res nullius [“property of no one”], like game and fish), by means of pursuits leading to consequences that are not unam­biguously foreseeable.

An issue that is important in itself is not expressly considered by the Roman jurists: namely, the recognizability of the award of the property to the first pursuer (hunter, snare-setter), something that properly should hinder the second pursuer from interfering with the claims of the first (publicity function of possession, assur­ance of the good faith of second pursuer).

size=1 color=black face="Book Antiqua">The solution of Trebatius will essentially tend to prevent conflict, as will that of Gaius. For this purpose the most important aspect of any rule is its clarity. Gaius's conception allows easier formulation of an unambiguous rule than does that of Trebatius.

It could be argued that Gaius gives insufficient protection to the legal right of the hunter (and Proculus to the right of the snare-setter), because he puts too much weight on the chance actions of a third party, rather than preventing these actions by force of law, as soon as a clearly recognizable and fundamentally foreseeable acquisition of the pursued animal is before the hunter (ita vulnerata... ut capi possit [“so wounded... as to be able to be captured”]).

Case Analysis of D 41.2.13 pr. (Case 47)

I.    The Facts:

Stones that sank in the Tiber after a shipwreck are raised again after the passage of some time.

II.    Legal Issue:

Was possession and ownership of the stones lost when they sank?

III.    Decision:

According to the interpretation of Ulpian, the possession is lost, but the ownership remains intact.

IV.    Reason for the Decision:

The criterion for retention and loss of possession in movables is fundamentally custodia, see Nerva in Paulus at D 41.2.3.13 (Case 46). Stones in the Tiber, in Ulpian’s opinion, have been removed from this custodia (possessor’s sphere of control); the possession of them is lost. By Ulpian’s reckoning, in this case there is clearly no longer a sufficient physical relationship, although there is scarcely any need to consider the possible actions of other persons. The possession would, however, have remained intact, if the owner had placed a guard near the place of the accident.

Retention of possession solo animo (“by intent alone”) in a fugitive slave, on the other hand, is, according to the prevailing doctrine, an exception: cf. Paul at D 41.2.1.14 (Case 31) and D 41.2.3.13 (Case 46). Ulpian emphasizes the excep­tional character of this ruling, which he does not allow to extend to stones in the Tiber. In a fugitive slave, the possession must remain so that he cannot, as it were, “steal himself.” Because of their intelligence, slaves can escape the control of their dominus more easily than other property. Therefore this [i.e., the master’s control] seems to be in special need of protection. Slaves are especially valuable in eco­nomic terms. They can acquire possession [of other property] for their dominus.

Possession of the slave, however, is a precondition of possession through the slave (Case 31). In addition to legal policy considerations of this kind, Ulpian would also have been able to make use of an argument that was more strongly influenced by legal dogma: custodia is not a suitable criterion of possession for slaves. Slaves can­not be constantly watched, because they would otherwise fail to serve most of the purposes for which they are used.

From Ulpian's report it can be inferred that Pomponius used an argumentum a maiore ad minus [“argument from the greater to the lesser”]: “If possession of a fugitive slave remains intact, then possession of stones in the Tiber does so even more (stones certainly cannot run off, but only remain until they are raised again).” In any event, Pomponius could also have argued that the custodia of the stones in the Tiber had not ended, as long as no one else had raised them—cf. the decision of Papinian at D 41.2.44 pr. (Case 47a), who, in reference to money that someone had buried in (his own or another's) land, kept the possession intact.

Loss of ownership of the stones would be understood to have occurred, if the owner had no expectation of getting them back again. In such a case, just as with complete destruction, one might speak of the total loss of the property. So, for example, of wild animals that escape, or of a silver vase thrown into the deep ocean, ownership is lost along with possession (see Gaius D 41.1.5.1 [Case 8] and Proculus D 41.1.55 [Case 9]).

That the stones, as stated in the facts, were actually raised, does not per se exclude the possibility that ownership was lost. Probably the case was put to the jurists because someone else, not the owner, raised them and believed he had thereby acquired ownership of res nullius. The jurist could have looked to whether loss of the property was to be understood according to general practice. (Cf. on this question the observations of Pomponius and Ulpian in D 41.1.44 [Case 96].) If he found an affirmative answer to this question, he could consider the ownership to be extinguished. Then the possessor, who recovered them contrary to any expecta­tion, thereby also acquired original ownership of them.

Ulpian (and probably Pomponius too) clearly proceeded from the assumption that the Tiber was so shallow that in normal circumstances the lost stones could be recovered. Therefore the ownership remained intact.

I. Pre-Justinianic Sources

II. Justinianic Sources (Continued)

III. Modern Statutes

ABGB (Austrian Civil Code)

(Continued)

III. Modern Statutes (Continued)

Antiqua">ABGB (Austrian Civil Code)

size=1 color=black face="Book Antiqua">BGB (German Civil Code) (Continued)

§ 1019                          143

ZGB (Swiss Civil Code)

Art. 726                        120

OR (Swiss Law of Obligations)

IV.     Roman Legal Maxims

V.     Argumentational Principles and Strategies in Roman Jurists