Involuntary Surrender of Possession

a.        Movable Property

CASE 45

D 41.2.25 pr.

Si id quod possidemus ita perdiderimus, ut ignoremus, ubi sit, desinimus possidere.

Translation: (Pomponius in the 23rd book of his Commentary on the Ius Civile of Q. Mucins)^[105]

If we lose that which we possess in such a way that we do not know where it is, we cease to possess it.

Discussion Questions:

1)   Distinguish among the terms “forget,” “misplace,” and “lose.”

2)    Consider whether possession is lost in the following fact situations:

a)      It occurs to a Roman on his way home from the baths that he left his book in the baths.

b)      A Roman woman realizes after returning from the city that she lost a piece of jewelry on the journey.

c)      Someone looks for a certain letter among his papers and in his haste fails to find it.

3)    Does the statement of Pomponius fit one of the cases described in “2”?

Compare with this Case:

§ 388 Austrian Civil Code:

1)      lang=EN-US>Movable property that is in no one's custody and has left the holder's control without his intent is lost property.

2)      Movable property that has been left behind without the holder's intent in a place under another's care, and that thereby has come into another's control, is forgotten property.^[106]

D 41.2.3.13 (Paulus libro quinquagensimo quarto ad edictum)

Nerva filius res mobiles excepto homine, quatenus sub custodia nostra sint, hactenus possideri, id est quatenus, si velimus naturalem possessionem nancisci possimus.

Translation: (Paulus in the 54th book of his Commentary on the Praetor’s Edict)^[107]

The younger Nerva writes that we possess movable property, with the exception of slaves, as long as we find the property in our custodia—i.e., if we, as soon as we wish, can take natural possession [naturalis possessio: i.e., “actual physical posses­sion”] of it. So a cow that has wandered off, or a vase that is missing in such a way that we cannot find it, immediately ceases to be possessed by us, even if it has been taken into possession by no one else. It is different if the property is in my custo­dia but has not been found, since it is present and in the meantime only a careful search for it is lacking.

Discussion Questions:

1)      Do you think that, following Nerva's formulation, a peasant possesses the plow that he lets stand in a field overnight, or a woodpile that he leaves in the forest?

2)  How is possession of a slave lost?

3)      How can Nerva's distinction between a cow that has wandered off and a slave that has run off be supported?

D 41.2.13 pr. (Ulpianus libro septuagensimo secundo ad edictum)

Pomponius refert, cum lapides in Tiberim demersi essent naufragio et post tempus extracti, an dominium in integro fuit per id tempus, quo erant mersi.

Translation: (Ulpian in the 72nd book of his Commentary on the Praetor’s Edict)^[108]

Pomponius treats the problem of whether ownership of stones that have sunk in the Tiber as a result of shipwreck and after some time have been raised again remains in force during the time they were submerged. I think that the ownership is maintained, but the possession is not. The case is not comparable with a servus fugitivus [“fugitive slave”], because possession of the fugitivus counts as continuing in order that he himself cannot rob us of the possession.

Discussion Questions:

name=bookmark902>1)      The solution that Pomponius proposed is missing: it was clearly omitted by the compilers. How might it have run?

2)   Do you keep possession or ownership in a ring that falls:

—        into a swimming pool?

—        into the sea?

3)      How is the case to be decided if the stones were thrown into the Tiber in order to avoid the shipwreck?

4)      Where is the similarity, denied by Ulpian but clearly believed by other jurists, between the sunken stones and a servus fugitivus?

5)      Examine the logical and legal-policy aspects of Ulpian's distinction (between ownership and possession) in reference to D 41.2.3.13 (Case 46) and D 41.2.1.14 (Case 31).

n.b.: Regarding this case see the model case-analysis in the Appendix at p.

D 41.2.44 pr. (Papinianus libro vicensimo tertio quaestionum)

Peregre profecturus pecuniam in terra custodiae causa condiderat: cum reversus locum thensauri immemoria non repeteret, an desisset pecuniam possidere, vel, si postea recognovisset locum, an confestim possidere inciperet, quaesitum est. dixi, quoniam custodiae causa pecunia condita proponeretur, ius possessionis ei, qui condidisset, non videri preremptum, nec infirmitatem memoriae damnum adfere possessionis, quam alius non invasit: alioquin responsuros per momenta servorum, quos non viderimus, interire possessionem. Et nihil interest, pecuniam in meo an in alieno condidissem, cum, si alius in meo condidisset, non alias possiderem, quam si ipsius rei posses­sionem supra terram adeptus fuissem. Itaque nec alienus locus meam propriam aufert possessionem, cum, supra terram an infra terram possideam, nihil intersit.

Translation: (Papinian in the 23rd book of his Legal Questions)^[109]

Before traveling abroad someone had buried money in the ground for safekeeping. After returning, when he did not locate the place due to his forgetfulness, it was asked whether he had ceased to possess the money, and whether he would imme­diately begin to possess it again if he should later remember the location.

I said that, since it is proposed that the money was buried for safekeeping, the right of possession was not lost by him who buried it, and also that a failure of memory would cause no impairment to the possession of property that no one else had entered upon.

Otherwise the jurists would have to decide that possession of slaves is lost the moment we no longer see them.

And it makes no difference whether I buried the money on my own or another's land, since I, if another had buried money on my land, would possess it only if I had taken hold of it above ground.

Note on the Text:

On the argumentum ad absurdum “alioquin responsuros" (“otherwise the jurists would have to decide"), see on Case 34.

name=bookmark917>Discussion Questions:

1)      Do I lose possession of my buried money if another takes possession of my land during my absence?

2)      Do I lose possession if I bury my money on another's land and the owner blocks my reentry?

3)      Do I lose possession if the owner of the land digs up my money?

Literature:

Mayer-Maly, T. “Thesaurus Meus,” in Studia in Honorem Velimirii Polay Septuagenarii, Elemer Polay, Ödön Both, and Jozsef Attila Tudomanyegyetem, eds., Allam- es Jogtudomanyi Kar. t.33, fasc.1-31. Szeged: Szegedi Jozsef Attila Tudomanyegyetem Allam- es Jogtudomanyi Kara, 1985, 283-289, at 287 ff.

b.       Land

i.         Keeping and Losing Possession of Summer and Winter Pasturage

CASE 48

D 41.2.3.11 (Paulus libro quinquagensimo quarto ad edictum)

Saltus hibernos aestivosque animo possidemus, quamvis certis temporibus eos relin­quamus.

Translation: (Paul in the 54th book of his Commentary on the Praetor’s Edict)^[110]

We retain possession of summer and winter pastures, even if we leave them for certain periods of time.

Discussion Questions:

1)      Is Paul proceeding from the proposition that the physical relationship is lost as a result of leaving the saltus [“pastures”]?

2)    How long can one retain one's possession of the saltus “animo?"

3)      Could one also make the argument that possession of the saltus would be retained corpore et animo?

4)      Possession of a house or field remains in force during short periods when they are left.

Literature:

lang=EN-US style='font-size:7.5pt; line-height:119%'>Rabel, Ernst. “Zum Besitzverlust nach klassicher Lehre," in Studi in Onore Di Salvatore Riccobono Nel XL Anno Del Suo Insegnamento, vol. 4, Salvatore Riccobono and Giovanni Baviera, eds. Palermo: Arti grafiche G. Castiglia, 1936, 203 ff. (reprinted in Gesammelte Aufsätze, 4 [1971] 580 ff., at 585 ff.).

D 41.2.27 (Proculus libro quinto epistularum)

Si is, qui animo possessionem saltus retineret, furere coepisset, non potest, dum fur­eret, eius saltus possessionem amittere, quia furiosus non potest desinere animo pos­sidere.

Translation: (Proculus in the fifth book of his Epistles)^[111]

If he who retains the possession of a pasture animo becomes mad, he cannot give up the possession of the pasture during the period of his madness, since a furiosus cannot cease to possess animo.

Discussion Questions:

1)      Why does the “loss” of the animus through madness not bring about the loss of possession? Compare this with the issue of acquisition of possession by a furiosus at D 41.2.3 (Case 22).

2)   How could he nevertheless lose possession?

3)      Would the loss of possession by a pupillus be handled in the same way? (Cf. Cases 41 and 42.)

Literature:

MacCormack (Case 13) 110 ff.

Krampe (Case 9) 79.

D 43.16.1.25 (Ulpianus libro sexagensimo nono ad edictum)

Quod volgo dicitur aestivorum hibernorumque saltuum nos possessiones animo reti­nere, id exempli causa^[112] didici Proculum dicere: nam ex omnibus praediis, ex quibus non hac mente recedemus, ut omisisse possessionem vellemus, idem est.

Translation: (Ulpian in the 69th book of his Commentary on the Praetor’s Edict)^[113]

I learned that Proculus said of the rule of thumb, “we retain animo the possession of summer and winter pastures,” that it was presented as an example; for it is the same in respect of all farm property that we do not leave with the intention of abandoning it.

Note on the Text:

On volgo dicitur [“rule of thumb;” literally, “it is commonly said”], see Case 32.

1)      Explain the exemplary character (the broadening of its application) of the saltus-decision.

2)      Is the duration of the possessor’s absence from the land relevant to his reten­tion of possession?

Literature:

Rable (Case 48) 210 ff. (reprinted in Gesammelte Aufsätze 585 ff.).

D 41.2.44.2 (Papinianus libro vicensimo tertio quaestionum)

Quibus explicitis, cum de amittenda possessione quaeratur, multum interesse dicam, per nosmet ipsos an per alios possideremus: nam eius quidem, quod corpore nostro teneremus, possessionem amitti vel animo vel etiam corpore, si modo eo animo inde digressi fuissemus, ne possideremus: eius vero, quod servi vel etiam coloni corpore possidetur, non aliter amitti possessionem, quam eam alius ingressus fuisset, eamque amitti nobis quoque ignorantibus. Illa quoque possessionis amittendae separatio est. nam saltus hibernos et aestivos, quorum possessio retinetur animo,

D 41.2.45 (Idem libro secundo definitionum)

licet neque servum neque colonum ibi habeamus,

D 41.2.46 (Idem libro vicensimo tertio quaestionum)

quamvis saltus proposito possidendi fuerit alius ingressus, tamdiu priorem possi­dere dictum est, quamdiu possessionem ab alio occupatam ignoraret. Ut enim eodem modo vinculum obligationum solvitur, quo quaeri adsolet, ita non debet ignoranti tolli possessio quae solo animo tenetur.

Translation: (Papinian in the 23rd book of his Legal Questions)^[114]

Consistent with this discussion, regarding the issue of loss of possession I would say that much depends on whether we possess through ourselves or another. For we can lose that which we possess corpore nostro (“our corpore") either animo or also corpore—provided we have left it with the intention of not possessing it. But possession of property that is held physically through a slave or a tenant can be lost only if some other has entered upon it, and this possession is lost even if we are ignorant of it. And the following distinction must be made regarding the loss of possession: summer and winter pastures, of which the possession is retained animo,

(the same in the second book of his Definitions)

even if we have neither slave nor tenant there,

(the same in the 23rd book of his Legal Questions)

remain in the possession of the former possessor, despite the entry of another with possessory intent, so long as the former possessor does not know that the pos­session has been taken by another. In order that the bond of obligations be broken in the same way that it is accustomed to be made, possession that is held solo animo ought not to be removed from someone who is ignorant of it.

Note on the Text:

D 41.2.45 is the compilers’ self-evident (i.e., superfluous) addition of an excerpt from another work of Papinian. The whole thread of text is clearly a severely abbre­viated excerpt by the compilers of what was a fuller discussion by Papinian.

Discussion Questions:

1)      Papinian discusses loss of possession in property that is possessed a) corpore nostro [“with our corpus”], b) animo nostro, corpore alieno [“with our animus but another’s corpus”], c) solo animo [“with our animus alone”]. Does he dis­tinguish thereby between voluntary and involuntary loss of possession?

2)      Does he also take into consideration the case of someone who travels to a market and, upon his return, finds his land possessed by another? Cf. D 41.2.6.1 (Case 52) and D 41.2.25.2 (Case 53).

3)      Is the decision regarding the saltus [“pasture(s)”] comparable with the deci­sional doctrine regarding the servus fugitivus [“fugitive slave”]? Cf. Cases 31, 46, and 47.

4)   Does the “symmetry principle” (contrarius actus)^[115] strengthen Papinian’s argument?

5)      How else can one justify that the possessor of a saltus loses possession only when he first learns of the dispossession, while possession is immediately lost with the ouster of a tenant (even without the possessor’s knowledge of the ouster)?

Literature:

MacCormack (Case 13) 128 ff.

ii.        Keeping and Losing Possession of Other Land by

the Possessor in Person

CASE 52

D 41.2.6.1 (Ulpianus libro septuagensimo ad edictum)

Qui ad nundinas profectus neminem reliquerit et, dum ille a nundinis redit, aliquis occupaverit possessionem, videri eum clam possidere Labeo scribit: retinet ergo pos­sessionem is, qui ad nundinas abit: verum si revertentem dominum non admiserit, vi magis intellegi possidere, non clam.

Translation: (Ulpian in the 70th book of his Commentary on the Praetor’s Edict)^[116]

If someone goes to the market and leaves no one at home, and, before he returns from the market, someone else seizes the possession, Labeo writes that the latter is understood to be in possession clam [“by stealth”]. Therefore the one who travels to the market retains the possession. If the intruder does not admit the returning owner to the property, he should instead be understood to be in possession vi [“by force”], not clam.

Note on the Text:

On videri, intellegi (“is understood”), see under Case 72.

1)      At D 41.2.3.5 Labeo denies (contrary to Trebatius and Sabinus) that the same property can have two possessors (i.e., a iustus [“lawful”] and an iniustus [“unlawful”] possessor). What conclusions do you draw from this regarding the interpretation of the present case?

2)  Exactly when, following Labeo, does the traveler to the market lose possession?

3)      What is the significance of neminem reliquerit [“leaves no one”] in the fact situation?

4)      May the returning owner forcibly drive out the intruder? On this issue, see the Excursus on “Protecting Possession” following Case 55.

5)      Does Labeo's decision that the intruder first possesses clam, but later vi, have any practical consequences?

6)      The characterization of the possession as vi, clam, precario, bonae fidei [“by force, by stealth, by request, in good faith”], etc. is applied after the time when possession is acquired. Does the decision contradict the rule: “nemo sibi ipse causam possessionis mutare potest?” (See Cases 15 and 16); [For more on vi and clam, see Section “D” of Chapter IV.]

Literature:

Rabel (Case 48) 217 (reprinted in Gesammelte Aufsätze 593 ff.).

D 41.2.25.2 (Pomponius libro vicensimo tertio ad Quintum Mucium)

Quod autem solo animo possidemus, quaeritur, utrumne usque eo possideamus, donec alius corpore ingressus sit, ut potior sit illius corporalis possessio, an vero (quod a Q. Mucio probatur) usque eo possideamus, donec revertentes nos aliquis repellat aut nos ita animo desinamus possidere, quod suspicemur repelli nos posse ab eo, qui ingressus sit in possessionem: et videtur utilius esse.

Translation: (Pomponius in the 23rd book of his Commentary on the Ius Civile of Q. Mucius)^[117]

Regarding property that we possess solo animo, a question arises whether we pos­sess it only so long as another does not enter it corpore, with the result that his physical possession is stronger, or instead (as was approved by Q. Mucius) we possess it until someone blocks our return or we surrender the possession animo because we suspect that we will be blocked by the person who has entered into possession. This is understood to be the more practical solution.

Note on the Text:

On utilius (“more practical”), see on Case 26.

Discussion Questions:

1)size=1 face="Times New Roman">  Do you think Pomponius was here speaking of keeping possession in a saltus?

2)      How can someone resist an intruder’s acquisition of possession where the intruder has nevertheless taken physical control of the property with pos­sessory intent?

3)      Distinguish the legal from the policy arguments in favor of an absent pos­sessor’s retention of possession.

4)      Is it correct to characterize the cessation of attempts to recover control of the property as animo desinere possidere [“surrender the possession animo”]?

5)      This decision of Pomponius is discussed elsewhere, including by Neratius/Paul at D 41.2.7. How does it stand in relation to Labeo/Ulpian at D 41.2.6.1 (Case 52), Papinian at D 41.2.44.2 (Case 51), and Celsus at D 41.2.18 (Case 54)?

Literature:

MacCormack (Case 13) 121 ff.

D 41.2.18.3 and 4 (Celsus libro vicensimo tertio digestorum)

(3)     Si, dum in alia parte fundi sum, alius quis clam animo possessoris intraverit, non desisse ilico possidere existimandus sum, facile expulsurus finibus, simul sciero.

(4)     Rursus si cum magna vi ingressus est exercitus, eam tantummodo partem quam intraverit optinet.

Translation: (Celsus in the 23rd book of his Digesta)^[118]

(3)     If someone secretly enters upon my land while I am away on another part of the same, it is not to be thought that I have immediately lost possession, if I can easily drive him off as soon as I learn of it.

(4)     If, moreover, an army marches in with great force, it gets only that part of the land that it has entered.

Discussion Questions:

1)      Can the decision of Celsus at D 41.2.18.3 [i.e., the first part of this case] be seen as an intermediate position between Labeo at D 41.2.6.1 (Case 52) and Pomponius at D 41.2.25.2 (Case 53)?

2)      Do you think Celsus would let the possession terminate, if the possessor did not immediately drive out the secret intruder upon learning of him?

3)      Does the decision at D 41.2.18.4 [second part of this case] also apply to the case where the army has the intent of possessing the entire property?

4)size=1 face="Times New Roman">      Discuss the relationship of Celsus D 41.2.18.4 to Paul at D 41.2.3.1 (Case 1)—sufficit quamlibet partem eius fundi introire [“it suffices to enter any part of the farm”].

Literature:

Rabel (Case 48) 217 ff. (reprinted in Gesammelte Aufsätze 594 ff.).

D 41.2.22 (lavolenus libro tertio decimo ex Cassio)

Non videtur possessionem adeptus is qui ita nactus est, ut eam retinere non possit.

Translation: (Javolenus in the 13th book of his Epitome of Cassius)^[119]

That man is not deemed a possessor, who has obtained the possession in such a way that he is unable to retain it.

Note on the Text:

On videtur (“is deemed”), see under Case 72.

Discussion Questions:

1)   See whether the statement of Javolenus yields a decision in the following cases:

a)      A wild boar is ensnared in such a way that he can free himself within a foreseeable time (Case 9).

b)      While the possessor of a piece of land is visiting the market, an intruder establishes himself on the land (Case 52).

2)    Does the statement of Javolenus have any application to Cases 53 and 54?

Excursus: Protecting Possession through Legal Process

Starting from the necessity of protecting the possessor of leased public land against the unauthorized incursion of a third party, there developed early a special legal process for protecting possession. Although this process did not do away with the need for self-help by the possessor, it did confine self-help within a legal framework that was supported and expanded by government enforcement.

In classical law, as before and later, the possessor may not only forcefully repel an intrusion on his possession (defense of possession), but also forcefully recover his lost property by means of offensive self-help (recovery of possession). If the forceful recovery by the dispossessed possessor takes place within a moder­ately short time, by classical doctrine the intruder will not have acquired posses­sion, since his control of the property fails to satisfy the element of duration (see Javolenus D 41.2.22, Case 55).

The person whose possession of land is interfered with or from whom the pos­session is taken secretly or by force can also request from the Praetor the interdic­tum uti possidetis [i.e., the interdict of the form: “Since you now possess..."]. This interdict forbids the use of force against the last fault-free possessor:

“Uti nunc eas aedes (or eum fundum etc.), quibus de agitur, nec vi nec clam nec precario alter ab altero possidetis, quo minus ita possideatis, vim fieri veto."

(“Since you now possess the house [or the farm, etc.], concerning which this dispute exists, having obtained it from the other party neither by force nor by stealth nor by request, I forbid the use of force against your possession.")

With this decree the Praetor permits the person who has lost his possession vi, clam, or precario [“by force, stealth, [or] request"], to take it back by force if nec­essary. If the opponent hinders this, he is first assessed a fine and later, in a subse­quent procedure, condemned to return the property or its monetary equivalent.

The exceptio vitiosae possessionis^[120] (nec vi nec clam nec precario alter ab altero)^[121] protects the possessor, who has recovered the control of his property through self­help, against the interdict of his opponent: he who has himself wrongfully taken possession from the interdict-opponent enjoys no possessory protection against the same. Such an intruder can, however, successfully defend and recover his pos­session against third parties through self-help or praetorian interdict. (This demon­strates the relativity of possessory protection, the protection of the one with better entitlement in an actual conflict of claimants.)

The interdictum uti possidetis served as the model for a later interdictum utrubi [i.e., interdict of the form: “With whichever of the two parties..."] that protected possession of movable property. The latter, however, did not order a return to the last possessory situation, but to the longer of the rightful possessions during the previous year.

He who was forcibly driven from his property could choose, as an alterna­tive to the uti possidetis, an interdictum unde vi [i.e., interdict of the form: “From where by force...”].^[122] The historical relationship of the two interdicts has not been entirely clarified. It is believed that the unde vi was introduced because the uti possidetis did not provide restitution but only permission for forceful recovery by self-help and a monetary fine for hindrance thereof.

The most important aspects of self-help and possessory protection should be clear in the following cases involving the interdictum unde vi.

Compare this topic to the special procedure for loss of possession in the Austrian Code of Civil Procedure (§§ 454-460):

§ 454 (1) Austrian Code of Civil Procedure:

In legal proceedings arising from interference with possession of property and of rights, in which the claim is directed only to the protection and the recovery of the last state of possession, and which are initiated within 30 days after the plaintiff becomes aware of the interference... ^[123]

§ 457 (1) Austrian Code of Civil Procedure:

The proceedings are limited to explanation and proof of the facts regarding the last state of possession and the ensuing interference, and all discussion of the right to possession, of title, of the reasonableness or unreasonableness of the possession, or of claims of possible compensation, are excluded.^[124]

Literature:

Wesener, G. “Offensive Selbsthilfe im klassischen römischen Recht,” Festschrift Artur

Steinwenter, Zum 70. Geburtstag. Bd.3. Graz: H. Böhlaus Nachf., 1958, 100-120, at 114 ff.

Wesener, G. Review of G. Nicosia, Studi Sulla Deiectio (Milano: Giuffre, 1965), in SDHI 32 (1966) 357-362.

D 43.16.1.30 (Ulpianus libro sexagensimo nono ad edictum)

Antiqua">Qui a me vi possidebat, si ab alio deiciatur, habet interdictum.

Translation: (Ulpian in the 69th book of his Commentary on the Praetor’s Edict)^[125]

If the man who possesses from me by force is himself driven from possession by another, he has the [benefit of the possessory] interdict.

Note on the Text:

Section 43.16 of the Digest is entitled de vi et de vi armata [“Concerning force and concerning armed force”].

The form of the interdictum unde vi in the Hadrianic edict reads: Unde in hoc anno tu illum vi deiecisti aut familia tua aut procurator tuus deiecit, cum ille possideret, quod nec vi nec clam nec precario a te possideret, eo illum quaeque tunc ibi habuit restituas. (“From where you have forcefully driven that man in the past year, or members of your familia or your procurator have driven him, since he was in possession of property that he obtained from you neither by force, nor by stealth, nor by request, to that place you must return him and restore everything else that he had there at that time.”)

Discussion Questions:

Smith possesses a piece of land. Jones drives him from the possession. Then Brown comes and ousts Jones.

1)   Who succeeds against whom with the interdictum unde vi:

Jones against Brown? Smith against Brown? Smith against Jones?

2)   Who may forcibly drive out whom by means of self-help:

Jones drive out Brown? Smith drive out Brown?

Compare with this Case:

§ 339 Austrian Civil Code:

Whatever the quality of the possession, no one is authorized to interfere with the same on his own authority. The person who is interfered with has the right to a legal claim for prohibition of the interference and compensation for provable damages.^[126]

§ 345 Austrian Civil Code:

If someone invades the possession, or through cunning or entreaty stealthily insin­uates himself, and seeks to change into a lasting right what a person allowed him to have as a favor without any continuing obligation, then his illegitimate and unreasonable possession becomes invalid as well... ^[127]

§ 346 Austrian Civil Code:

Against every invalid possessor both restoration and indemnification for damages can be sued for. Pursuant to legal process, the court must order both, without regard to a stronger right to the property that the defendant possibly has.^[128]

§ 861 I German Civil Code:

§ 862 I German Civil Code:

If the possessor is disturbed in his possession through unlawful force, then he can demand cessation of the disturbance by the interferer. If further disturbances are feared, then the possessor can sue for prohibition.^[130]

D 43.16.17 (lulianus libro quadragensimo octavo digestorum)

Qui possessionem vi ereptam vi [in ipso congressu] reciperat, in pristinam causam reverti potius quam vi possidere intellegendus est: ideoque si te deiecero, [ilico] tu me, deinde ego te, unde vi interdictum tibi utile erit.

Translation: (Julian in the 48th book of his Digesta)^[131]

If someone has recovered by force a possession that had been forcibly taken from him [in the same conflict], he counts as returned to his earlier condition rather than possessing by force. Therefore if I drive you out, and [on the spot] you drive me out, and then I drive you out, you will be able to use the interdictum unde vi.

Note on the Text:

Justinian removed the exceptio vitiosae possessionis [“affirmative defense of defec­tive possession”] from the form of the interdictum unde vi. Therefore the compilers narrowed Julian's statement by interpolating^[132] the phrases in ipso congressu [“in the same conflict”] and ilico [“on the spot”]. On intellegendus (“counts as”), see under Case 72.

Discussion Questions:

1)  Explain Julian's decision.

2)      Consider the following fact-situation: Jones drives Smith from possession of a piece of land. Smith returns after a day and drives out Jones. Jones then moves for the interdictum unde vi against Smith. How does the praetor decide? How does Justinian decide?

3)      Do the compilers forbid every “recovery of possession,” or does their formu­lation extend beyond simple “defense of possession”?

Compare with this Case:

§ 344 Austrian Civil Code:

To the rights of possession belong also the right to protect oneself in one's posses­sion, and in the case that the judicial help would come too late, to resist force with commensurate force (§ 19)....40

§ 859 German Civil Code:

I         The possessor may defend himself against unlawful force with force.

II       If a movable piece of property is separated from the possessor by means of unlawful force, he may take it back by force from the wrongdoer who is caught in the very act or pursued.

III      If the possession of land is wrested from the possessor through unlawful force, he may immediately upon the dispossession recover the possession by displacing the wrongdoer.^{[133] [134]}

D 43.16.18 pr. (Papinianus libro vicensimo sexto quaestionum)

Cum fundum qui locaverat vendidisset, iussit emptorem in vacuam possessionem ire, quam colonus intrare prohibuit: postea emptor vi colonum expulit: de interdictis unde vi quaesitum est. placebat colonum interdicto venditori teneri, quia nihil inter- esset, ipsum an alium ex voluntate eius missum intrare prohibuerit: neque enim ante omissam possessionem videri, quam si tradita fuisset emptori, quia nemo eo animo est, ut possessionem omittere propter emptorem, quam emptor adeptus non fuisset. Emptorem quoque, qui postea vim adhibuit, et ipsum interdicto colono teneri: non enim ab ipso, sed a venditore per vim fundum esse possessum, cui possessio esset ablata. Quaesitum est, an emptori succurri debeat, si voluntate venditoris colonum postea vi expulisset. Dixi non esse iuvandum, qui mandatum illicitum susceperit.

Translation: (Papinian in the 26th book of his Legal Questions)^[135]

When someone sold a farm that he had let out on lease, he ordered the buyer to take vacua possessio [“unimpeded possession”], which the tenant prohibited him from entering. Thereafter the buyer drove off the tenant with force. The issue con­cerns the interdict unde vi. It was held that the tenant is liable to the seller under the interdict, since it makes no difference whether he prevented the seller himself to enter or another who was sent at the seller's wish. For the possession does not count as surrendered before it is delivered to the buyer, since no one intends to surrender possession in favor of a buyer who would not have received it. The buyer who afterward used force is also liable under the interdict, but to the tenant. For the farm was possessed by force not from him but from the seller, who has been deprived of the possession. It was asked whether the buyer ought to be assisted [by the interdict], if he afterward expelled the tenant at the seller's wish. I replied that he who has taken up an illegal commission should not be assisted.

Note on the Text:

On placebat (“it was held that”), see on Case 36; on videri (“count as”), see on Case 72.

Discussion Questions:

Analyze Papinian's decision.

D 43.16.1.27 (Ulpianus libro sexagensimo nono ad edictum)

Vim vi repellere licere Cassius scribit idque ius natura comparatur: apparet autem, inquit, ex eo arma armis repellere licere.

Translation: (Ulpian in the 69th book of his Commentary on the Praetor’s Edict)^[136]

Note on the Text:

The operation of the rule vim vi repellere licet (“one may resist force with force”) is not limited to defense of possession: it expresses generally the right of self-defense (defense by appropriate means against a present or immediately imminent unlaw­ful threat to life, health, or property)—cf. Gaius D 9.2.4 pr. adversus periculum naturalis ratio permittit se defendere (“natural reason permits the defense of oneself against danger”); Paul D 9.2.45.4 vim enim vi defendere omnes leges omniaque iura permittunt (“all laws and legal regimes permit defense by force against force”).

Discussion Questions:

1)      In the case of the interdictum de vi armata [“interdict concerning armed force”] the praetor granted no exceptio vitiosae possessionis [“affirmative defense of defective possession”]. What considerations might have moved him to make this distinction as compared with the interdictum unde vi?

2)      Smith is driven off by Jones with vis armata [“armed force”] and thereafter recovers his possession with armed force. Will the praetor grant Jones the interdictum de vi armata against Smith?

3)      Rarely the praetor granted an exceptio “quod tu prior vi hominibus armatis non veneris” (“insofar as you did not first invade with armed men”). Is Cassius making reference to this exceptio?

4)      What considerations might have led the praetor to grant an exceptio “quod tu prior...,” but not an exceptio vitiosae possessionis?

Literature:

Manthe (Case 19) 96 ff.

iii.    Keeping and Losing Possession through Intermediaries (Slaves, Tenants)

CASE 60

D 19.2.60.1 (Labeo posteriorum libro quinto a Iavoleno epitomatarum)

Heredem coloni, quamvis colonus non est, nihilo minus domino possidere existimo.

Translation: (Labeo in the 15th book of the Epitome of [Labeo’s] Posthumously Published Writings prepared by Javolenus)^[137]

I believe that the heir of a tenant, although not himself the tenant, nevertheless possesses for the dominus [“owner”].

Discussion Questions:

Explain Labeo’s decision.

size=1 color=black face="Book Antiqua">D 41.2.25.1 (Pomponius libro vicensimo tertio ad Quintum Mucium)

Et per colonos et inquilinos aut servos nostros possidemus: et si moriantur aut furere incipiant aut alii locent, inellegimur nos retinere possessionem. Nec inter colonum et servum nostrum, per quem possessionem retinemus, quicquam interest.

Translation: (Pomponius in the 23rd book of his Commentary on the Ius Civile of Q. Mucius)^[138]

We possess also through tenants and renters or our slaves. And if they die or go mad or lease to another, it is understood that we retain the possession. And there is no difference between a tenant and our slave, through whom we retain possession.

Note on the Text:

On intellegimur (“it is understood that we”), see under Case 72.

Discussion Questions:

1)      How can one make a legal argument for retention of possession despite the death of the slave who works the land?

2)      How did the Roman jurists explain the retention of possession by a madman?

3)      How long does possession after the death or madness of the slave remain in force?

4)      How can the tenant be compared with the slave as regards retention of possession?

5)      Why is the owner's possession not impaired by a sublease?

Literature:

Benohr (Case 23) 51.

D 41.2.30.6 (Paulus libro quinto decimo ad Sabinum)

Si ego tibi commodavero, tu Titio, qui putet tuum esse, nihilo minus ego id possidebo. Et idem erit, si colonus meus fundum locaverit aut is, apud quem deposueram, apud alium rursus deposuerit. Et id quamlibet per plurium personam factum observan­dum ita erit.

Translation: (Paul in the 15th book of his Commentary on the Ius Civile of Q. Mucius)^[139]

If I lend you something and you lend it thereafter to Titius, who thinks it is yours, I remain the possessor nonetheless. It is the same if my tenant sublets the land, or the person with whom I have deposited a thing, gives it to another for safekeeping. And this holds true in the case of any greater number of persons.

Discussion Questions:

size=1 color=black face="Book Antiqua">1)      Is it without significance that Titius means to exercise the possession not for ego [me] but for tu [you]?

2)      How is it that tu [you] do not commit a theft that terminates possession by ego [me]?

3)      What speaks in favor of an indefinite length of the possessory chain? What speaks against it?

D 41.2.32.1 (Paulus libro quinto decimo ad Sabinum)

Si conductor rem vendidit et eam ab emptore conduxit et utrique mercedes praestitit, prior locator possessionem per conductorem rectissime retinet.

Translation: (Paul in the 15th book of his Commentary on the Ius Civile of Q. Mucius)^[140]

If a lessee sells the property and leases it back from the buyer and pays rent to both lessors, the first lessor keeps valid possession through the lessee.

Discussion Questions:

1)   Has the second party here not transferred possession to the third?

2)    Does it make a difference whether land or a movable is at issue?

3)    Consider the relationship between this decision and D 41.2.30.6 (Case 62).

D 41.2.9 (Gaius libro vicensimo quinto ad edictum provinciale)

Generaliter quisquis omnino nostro nomine sit in possessione, veluti procurator hospes amicus, nos posidere videmur.

Translation: (Gaius in the 25th book of his Commentary on the Provincial Edict)“^[141]

Generally speaking, if anyone at all possesses in our name, like a procurator, a guest, or a friend, we count as the possessor.

Note on the Text:

On videmur (“we count as”), see under Case 72.

Discussion Questions:

Possession cannot be acquired through guests or friends. How is it that possession can be retained through these persons?

D 41.2.3.8 (Paulus libro quinquagensimo quarto ad edictum)

size=1 color=black face="Book Antiqua">Si quis nuntiet domum a latronibus occupatam et dominus timore conterritus nolu­erit accedere, amisisse eum possessionem placet. Quod si servus vel colonus, per quos corpore possidebam, decesserint discesserintve, animo retinebo possessionem.

Translation: (Paul in the 54th book of his Commentary on the Praetor’s Edict)⁹⁹

If someone should report that the house is occupied by thieves, and the owner does not wish to return from fear, he has lost the possession according to established doctrine; but if a slave or a tenant, through whom I have the possession corpore, dies or departs, I retain the possession animo.

Note on the Text:

On placet (“according to established doctrine”), see on case 36.

Discussion Questions:

1)      Try to find a more substantial reason for the “established doctrine” that Paul cites.

2)      Is it relevant for Paul's decision whether robbers actually do occupy the house?

3)   From what perspective does Paul contrast the cases discussed here?

4)   Can one retain possession animo, if his tenant is ousted by an intruder?

5)      At D 41.2.40.1 (quoted below) Julian lets possession be lost if a tenant will­ingly surrenders it. What speaks in favor of Julian's opinion? What in favor of Paul's?

Compare with this Case:

D 41.2.40.1 (Africanus libro septimo quaestionum)

Si forte colonus, per quem dominus possideret, decessisset, propter utilitatem recep­tum est, ut per colonum possessio et retineretur et contineretur: quo mortuo non sta- tim dicendum eam interpellari, sed tunc demum, cum dominus possessionem apisci neglexerit. Aliud existimandum ait, si colonus sponte possessione discesserit. ^[142]

Translation: (Africanus in the seventh book of his Legal Questions)^[143]

If by chance a tenant, through whom the owner possesses, dies, it is accepted for reasons of practicality that the possession is kept and continues through the tenant; and it is not to be said that the possession is interrupted as soon as the tenant dies, but only when the owner fails to take possession. [Julian] says it should be decided differently if the tenant willfully leaves the possession.

D 4.3.31 (Proculus libro secundo epistularum)

Cum quis persuaserit familiae meae, ut de possessione decedat, possessio quidem non amittitur, sed de dolo malo iudicium in eum competit, si quid damni mihi acces­serit.

color=black face="Book Antiqua">Translation: (Proculus in the second book of his Epistles)^[144]

If someone persuades my household servants to depart from the possession, the possession is not lost; however, I have an actio de dolo [“lawsuit for fraud”] against him, if I suffer any damage.

Discussion Questions:

1)      Jones persuades Smith's slaves to leave the latter's land and he himself occu­pies it. Has Smith lost possession?

2)      Jones persuades Smith's household servants to give him a riding horse. Has Smith lost possession?

3)      Smith's slaves capture a wild boar; Jones persuades them to let the boar free. Has Smith lost possession? Can he demand the value of the boar from Jones?

4)      Add precision to Proculus' opinion and defend it against the objection that control of the property is lost with the departure of the entire household, and therefore the possession is lost too. Also take note of Cases 65 and 51.

Literature:

Krampe (Case 9) 78.

MacCormack, G. “Dolus in the Law of the Early Classical Period (Labeo-Celsus).” SDHI 52 (1986) 236-285, at 243 ff.