CASE 115: Ownership and Possession

Gaius, Institutiones 2.89, 95

(89) Non solum autem proprietas per eos, quos in potestate habemus, adquiritur nobis, sed etiam possessio; cuius enim rei possessionem adepti fuerint, id nos pos­sidere videmur; unde etiam per eos usucapio procedit....

(Gaius in the second book of his Institutes)

(89) Through those whom we have in our power, we acquire not only ownership but also possession; for when they take possession of anything, we are held to possess it. So also usucapion runs through them...............................................

(95) From these considerations it seems that on no basis can we acquire (ownership or possession) through free persons whom we do not hold subject to our power and whom we do not possess in good faith, nor through slaves whom we neither have in usufruct nor have legal possession of. And it is for this reason that it is commonly said that ownership cannot be acquired through an outside person.

A question arises only concerning possession, as to whether we acquire it through a general manager (procurator).

1.      Usucapion.

2.      The Exclusive Household and the Procurator. It is section 95 that is really important here. Why is it that, although acquisition can occur through sub­ordinates within the household, it cannot occur through “outsiders” (extranei, “strangers” or “foreigners”)? Gaius notes a possible exception only for a procu­rator, a free person whom a principal appoints to manage his or her affairs. (The text of Gaius is restored on the basis of Neratius, D. 41.1.13 pr.) At most, on Gaius's view, the procurator can acquire for the principal only possession, not ownership; however, in most instances, by taking possession the princi­pal would also acquire ownership either immediately or through usucapion (see, e.g., Ulpian, D. 41.1.20.2). Why might the Romans have resisted the concept of “outside” agency even in the case of beneficial acquisitions? In other words, why are they so reliant on their household circle?

D. 41.2.1.5 (Paulus libro quinquagensimo quarto ad edictum)

Item adquirimus possessionem per servum aut filium, qui in potestate est, et qui­dem earum rerum, quas peculiariter tenent, etiam ignorantes, sicut Sabino et Cas­sio et Iuliano placuit, quia nostra voluntate intellegantur possidere, qui eis pe­culium permiserimus.

(Paul in the fifty-fourth book on the Edict)

Likewise we acquire possession through a slave or a son who is in (our) power; and indeed, (we acquire possession) of those things that they hold in a peculium even though (we are) unaware (that we do so), since, according to Sabinus and Cassius and Julian, they are understood to possess by our will (nostra voluntate) since we allowed them to have a peculium. So on the basis of a peculium, even an infant and a madman acquire possession and usucapt, as does an inheritance if a slave in the inheritance makes a purchase.

1.      Is Knowledge Required? Look back at the text of Cases 114-115. Does Gaius seem to require that the pater familias know of the acquisition by the son or slave? In this Case, by contrast, Paul strongly implies that knowledge is re­quired (except in the case of a peculium); if so, that would significantly limit the role of a child-in-power or slave as an agent. Our sources are not clear, and classical jurists themselves may have disputed the issue; but some schol­ars believe that Justinian’s compilers altered classical texts to produce the re­sult here. In any case, why might acquisition outside the peculium have made some Roman lawyers uneasy?

2.      Is Knowledge Required Only for Usucapion? Compare this fragment of Paul, D. 41.4.2.11: “Celsus writes that if my slave takes possession on the basis of a peculium, I usucapt even though unaware of this action; but if not on the basis of a peculium, (I do) not (usucapt) unless I know.” If this text is taken at face value, the slaves action, if not on the basis of a peculium, would result in the master possessing but not yet being able to usucapt (acquire ownership of a res mancipi through passage of time).

3.      The Slave’s Knowledge. Paul, D. 41.2.1.9-10: “However, the person through whom we wish to possess must have an understanding of possession. (10) So if you send an insane slave to take possession, you are not regarded as taking possession.” Does this mean only that the slave or child-in-power must un­derstand that possession is being taken, or is an intent to take possession specifically for the pater also required? Possibly the latter; see Paul, D. 41.2.1.19 (“[I]f you order your slave to take possession and he enters posses­sion with the intent that he does not wish to acquire for you but rather for Titius, you have not acquired possession”). But this text may have been al­tered by the compilers of the Digest.