CASE 113: Owning and Possessing Nothing
D. 41.2.49.1 (Papinianus libro secundo Definitionum)
Qui in aliena potestate sunt, rem peculiarem tenere possunt, habere possidere non possunt, quia possessio non tantum corporis, sed et iuris est.
(Papinian in the second book of his Definitions')
Those who are in another person’s power can hold (i.e., physically possess) the property in a peculium, (but) they cannot own or (legally) possess it, since possession is a matter not just of physicality but also of law.
1. The Peculium.
Papinian states the fundamental rule in this Case clearly but somewhat obliquely. Although a child-in-power (like a slave) had no property of his or her own, the paterfamilias frequently granted the child effective control over some property, in a way broadly similar to a modern allowance but, at least among the upper classes, often on a much larger scale; and this control was recognized at law as the peculium (literally, as it seems, “petty cash fund”), with legal implications examined more fully below in section 3. Nonetheless, as Papinian says, the child does not legally own or possess this property. Rather, it is owned and possessed by the paterfamilias and so forms part of the household. Is it fair to conclude that, since children-in-power do not even own or possess their peculia, they will therefore also not own or possess any other property within the household?2. Two Kinds of Possession. What is the difference between physical possession (“holding”; the Latin verb is tenere) and legal possession (possidere)? The latter is, as Papinian says, a legal relationship that is defined by law and protected by legal remedies if it is violated.
A son may physically control property in the sense of having it with him and using it; but precisely because he is in his father's power, he is still not in legal possession of it, and if a third party interferes with property held by the son, it is only his father who has the remedies.3. Patria Potestas. It is obviously consistent with the nature of patria potestas that children-in-power are denied the capacity to own property. But does patria. potestas actually entail the child's lack of capacity? For instance, could a pater familias grant his children the right to own and possess property for themselves, in a way that would then be legally enforceable against third parties or even against himself? Why or why not?
4. Can Children-in-Power Write Wills? A postclassical text (Tit. Ulp. 20.10 = Case 138) gives an emphatic answer: “A son-in-power cannot make a will since he has nothing of his own that he can make a will for.” Soldiers were a partial exception; see Case 138.