Special Cases: Acquisition “animo”

It seems that the doctrine formulated by the late classical jurist Paul, “we acquire possession corpore et animo, not animo alone nor corpore alone” (D 41.2.3.1: Case 1), is not without exceptions.

If a detentor ([a mere”holder of property,” such as] a lessee, a tenant, a safekeeper, or a borrower) purchases it from the possessor (or is given it or obtains it on loan, etc.), he obtains possession through simple agreement with the seller, insofar as there is no requirement for the thing to be returned and subsequently delivered by an act of physically handing it over. (See under Case 13 [D 12.1.9.9]: animo enim coepit possidere [“he commences to possess it animo”].) Even in this case of so-called traditio brevi manu^[39] [“delivery with a short hand”], however, the physical relationship is not missing; instead it is already present to a sufficient degree, so that there need be no issue of physi­cal delivery and act of acquisition. The formulation, “one can take possession animo,” is therefore imprecise, since in reality there is no waiver of the physical element.

Although the so-called constitutum possessorium^[40] [“possessory agreement”] is not identified in the sources as a way of acquiring possession animo, it belongs in this section because of its meaning: someone can take possession by mere agreement with the erstwhile possessor, if the latter agrees to hold the property henceforth in the name of the acquirer, who in this way satisfies the physical relationship.^[41]

Literature:

Hausmaninger (Case 10 above) 113 ff.

Schulz, F.

Wacke, Andreas. Das Besitzkonstitut als Übergabesurrogat in Rechtsgeschichte und Rechtsdogmatik : Ursprung, Entwicklung u. Grenzen d. Traditionsprinzips im Mobiliarsachenrecht. Köln: Hanstein, 1974, 8 ff.

a.        Traditio brevi manu

CASE 12

D 41.1.9.5 (Gaius libro secundo rerum cottidianarum sive aureorum)

Interdum etiam sine traditione nuda voluntas domini sufficit ad rem transferendam, veluti si rem, quam commodavi aut locavi tibi aut apud te deposui, vendidero tibi: licet enim ex ea causa tibi eam non tradiderim, eo tamen, quod patior eam ex causa emptionis apud te esse, tuam efficio.

Translation: (Gaius in the second book of his Jurisprudence of Daily Life, also known as the Golden Rules)^[42]

Sometimes even without traditio the simple intention of the owner suffices to accom­plish the delivery of the property, as when I sell you something that I have lent or rented to you or deposited with you. Although I did not deliver it to you for this rea­son, I make it yours by consenting to its remaining with you due to the purchase.

Discussion Questions:

1)      On the basis of what shared attribute does Gaius group together loans, ten­ancies, and deposits? Can you think of further examples?

2)   Could Gaius have named other grounds for acquisition besides a purchase?

3)      Gaius speaks of acquiring ownership.

4)      Why does Gaius not mention the animus possidendi [“possessory intent”] of the acquirer?

Compare with this Case:

§ 428 Austrian Civil Code:

A thing is delivered by declaration, if the transferor makes his will known in a man­ner capable of proof that henceforth he holds the thing in the name of the acquirer; or the acquirer of the thing henceforth is to possess by legal property-right the thing that he previously held without legal property-right.^[43]

Literature:

Gordon (Case 2 above) 37 ff.

D 12.1.9.9 (Ulpianus libro vicensimo sexto ad edictum)

Deposui apud te decem, postea permisi tibi uti: Nerva Proculus etiam antequam move­antur, condicere quasi mutua tibi haec posse aiunt, et est verum, ut et Marcello videtur: animo enim coepit possidere. ergo transit periculum ad eum, qui mutuam rogavit et pot­erit ei condici.

Translation: (Ulpian in the 26th book of his Commentary on the Praetor’s Edict)^[44]

I deposited 10 gold coins with you. Later I permitted you to use the money. Nerva and Proculus say that even before the coins have been removed from where you were keeping them, they can be the subject of a condictio^[45] like loans of money (mutua).

Notes on the Text:

Ulpian's discussion occurs in D 12.1: de rebus creditis si certum petetur et de condictione [“Concerning loaned property and the action called condictio when a sum certain will be sought”], in the context of discussing lawsuits based on loans.

The facts: Smith and Jones make a contract regarding the safekeeping of 10 pieces of gold. Later the depositor permits the money to be used by the depositary at the latter's request.

Making a contract                       Altering the contract by                           Actual use

-------------------- I---------------------------------------------- I-------------------------------------- I------- *· for safekeeping  allowing use of the money of the money

Legal question: What are the legal consequences of agreeing to permit use of the money? To what degree do these consequences take place already before actual use of the money?

Discussion Questions:

A depositum (contract for safekeeping) is a “real contract”^[46] that comes into exis­tence with the transfer of a movable to the care of a safekeeper, who is obligated to safekeep the item without compensation and to return it at any time. The receiver of the property becomes a detentor [“holder”], and he holds the property in the name of the depositor. He may not use the property.

A mutuum (contract for loan) is a “real” contract by which a sum of money (or other fungible property) is transferred to the ownership of a receiver, and it is agreed that the receiver is to return the same sum (or quantity of fungible property) in the future.

Nerva and Proculus accept that a contract originally for safekeeping [deposi­tum] is transformed into a contract for loan [mutuum] by the granting of permis­sion to use the [deposited] property.^[48] They therefore proceed from the assump­tion that the safekeeper has requested the depositor to permit use of the money (qui mutuam rogavit [“whoever requested the loan”]). A contract comes into being through mutual agreement. A depositor’s permission to use the property, if it had not been requested, would be an offer that required acceptance [by the depositary]. The safekeeper’s acceptance could follow expressly or by implication (spending the money), but prior to this acceptance there would be no contract.

A mutuum requires transfer of ownership, and this presupposes acquiring pos­session. Since the safekeeper of the 10 coins is a detentor, it is not necessary that he give the money back to the depositor and obtain the loan amount by re-delivery: in fact he need not remove the money even once from his cashbox. Already the early classical Nerva and Proculus allowed him to obtain possession by the fiction of a traditio brevi manu (“delivery with a short hand”). Marcellus and ultimately Ulpian agreed with this solution. (Possibly a different opinion was held by the rival Sabinian school: see under Case 16).

Animo coepit possidere [“he has begun to possess animo”] expresses the idea that acquiring possession requires no physical activity if there already exists a sufficient physical relationship to the property. The detentor obtains possession for himself solely by mutual agreement with the existing possessor.

Periculum means the risk of accidental loss of the property. Basically “the owner bears the risk” (casum sentit dominus).

A reason for the preceding legal distinction would be the case in which the sum deposited is unexpectedly lost (e.g., it is stolen) after the permission to use it was granted but before its actual use.

Literature:

MacCormack, Geoffrey. “The Role of Animus in the Classical Law of Possession.” ZRG 86 (1969) 105-145.

von Lübtow, Ulrich. Die Entwicklung des Darlehensbegriffs im römischen und im geltenden Recht mit Beiträgen zur Delegation und Novation, Vol. Bd. 10. Berlin: Duncker & Humblot, 1965, 55 ff.

D 6.2.9.1 (Ulpianus libro sexto decimo ad edictum)

Si quis rem apud se depositam vel sibi commodatam emerit vel pignori sibi datam, pro tradita erit accipenda, si post emptionem apud eum remansit.

Translation: (Ulpian in the 16th book of his Commentary on the Praetor’s Edict)“^[50]

If someone buys a thing that has been deposited with himself or loaned [commodatam]^[51] or given as a pledge to himself, the property is to be understood as having been delivered, if it remains with him after the purchase.

Note on the Text:

The appended clause, vel pignori sibi datam (“or given as a pledge to himself¹’), could be due to the correction of a copyist's oversight or the addition of a later reworking.

Discussion Questions:

State the fact-situation and legal question and justify the jurist's reasoning. In your discussion refer to D 41.1.9.5 (Case 12) and D 12.1.9.9 (Case 13).

Literature:

V. Lubtow (Case 13) 57 ff.

Excursus: nemo sibi ipse causam possessionis mutare potest^[52]

This rule had already been expressed by jurists of the republican period (called veteres “the old [jurists]”). The rule means that no one can unilaterally alter for his own benefit the legal basis of his possession. Causa possessionis [“the legal basis of possession”] is therefore not to be understood technically as the basis of posses­sory title but quite generally as the reason for being in possession. The rule applies particularly to a detentor (naturalis possessor—i.e., someone who holds the prop­erty but does not have possessio of it). So, for example, a lessee or renter [neither of whom is technically a “possessor” of the property] would not be in a position to acquire the property by prescription pro herede (“[as if] in the capacity of an heir”) following the death of the owner.

The classical jurists felt that the rule was too broadly fashioned and needed to be limited. Julian (D 41.3.33.1) did allow a tenant to acquire the property by prescription as a possessor pro herede, if the tenant believed in good faith that he was the heir. The jurist had to employ a flimsy argument to justify this solution: viz. since the tenant did not have possessio, he could not run afoul of the prohibi­tion against a mutatio causae possessionis (“change of the reason for his possession”)! The rule was therefore not simply abandoned. Celsus had to reconcile it with the theoretical premise of the constitutum possessorium (D 41.2.18 pr.: Case 17). Still later, Paul was troubled by the rule's continuing influence and was obliged to dis­tinguish the doctrine of traditio brevi manu from it. Compare Julian's ill-considered reasoning with the following case (D 41.2.3.20) (qui ne possidebam quidem = “since I did not even possess [the property]”), which could lead to the irrational result that a detentor may indeed unilaterally change the legal basis for his claim to pos­session (in order thereafter to acquire ownership through prescription), while a possessor cannot!

The rule is still present in § 319 of the Austrian Civil Code (quoted under Case 17).

Literature:

Hausmaninger, H. “Nemo sibi ipse causam possessionis mutare potest—eine Regel der veteres in der Diskussion der Klassiker,” in Aktuelle Fragen Aus Modernem Recht Und Rechtsgeschichte: Gedächtnisschrift Für Rudolf Schmidt, E. Seidl and Rudolf Schmidt, eds. Berlin: Duncker & Humblot, 1966, 399 ff.

Schmidlin, Bruno. Die Römischen Rechtsregeln; Versuch Einer Typologie, Vol. Abh. 29. Köln: Böhlau Verlag, 1970, 90 ff., 114 ff.

Nörr, Dieter. “Spruchregel Und Generalisierung.” ZRG 89 (1972) 18-93.

MacCormack, G. “Nemo Sibi Ipse Causam Possessionis Mutare Potest.” BIDR 75 (1972) 71-96, 71 ff.

D 41.2.3.19 and 20 (Paulus libro quinquagensimo quarto ad edictum)

(19)   Illud quoque a veteribus praeceptum est neminem sibi ipsum causam posses­sionis mutare posse.

(20)   Sed si is, qui apud me deposuit vel commodavit, eam rem vendiderit mihi vel dona­verit, non videbor causam possessionis mihi mutare, qui ne possidebam quidem.

Translation: (Paul in the 54th book of his Commentary on the Praetor’s Edict)“^[53]

(19)   The older jurists have also taught that no one can change for his own ben­efit the legal basis of his claim to possession.

(20)   But if someone who has deposited property with me or lent it to me [com­modavit] later sells or gives me the property, I do not count as someone who has changed the basis of possession for himself, since I did not even possess [the property before].

Note on the Text:

On videbor (“I... count as...”), see on Case 72.

Discussion Questions:

1)      Explain the distinction between the doctrine of traditio brevi manu and the rule “nemo sibi ipse.. .”

2)      Replace the inapposite argument of “qui ne possidebam quidem" (“since I did not possess the property before”) with a more suitable one.

name=bookmark438>Literature:

Hausmaninger, H. “Nemo sibi ipse causam possessionis mutare potest—eine Regel der veteres in der Diskussion der Klassiker,” in Aktuelle Fragen aus modernem Recht und Rechtsgeschichte: Gedächtnisschrift für Rudolf Schmidt, E. Seidl and Rudolf Schmidt eds. Berlin: Duncker & Humblot, 1966, 404.

D 41.2.3.18 (Paulus libro quinquagensimo quarto ad edictum)

Si rem apud te depositam furti faciendi causa contrectaveris, desino possidere. Sed si eam loco non moveris et infitiandi animum habeas, plerique veterum et Sabinus et Cassius recte responderunt possessorem me manere, quia furtum sine contrectatione fieri non potest nec animo furtum admittatur.

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

If you, intending to steal property that I deposited with you, have removed it, I cease to possess it. But if you have not removed it from its place and intend to make a denial, most of the older jurists, along with Sabinus and Cassius, have correctly replied that I remain the possessor, since there is no theft without handling the property, nor can a theft take place animo alone.

Note on the Text:

On plerique (“most”), see on Case 72.

Discussion Questions:

Consider this text in connection with the holding of D 12.1.9.9 (animo enim coepit possidere, Case 13) and with the rule nemo sibi ipse causam possessionis mutare potest. Do you detect in the two texts a school-conflict between the Sabinians and the Proculians regarding the permissibility of acquiring possession solo animo?^[55]

Literature

Thomas J. A. C. “Infitiando Depositum Nemo Facit Furtum” in Studi in onore di Edoardo Volterra, Pubblicazioni della Facoltà di Giurisprudenza dell’università di Roma, Vol. 41, Milano: Giuffrè, 1971, 759-768, at 762 ff.

b.        Constitutum possessorium

CASE 17

D 41.2.18 pr. (Celsus libro vicensimo tertio digestorum)

Quod meo nomine possideo, possum alieno nomine possidere: nec enim muto mihi causam possessionis, sed desino possidere et alium possessorem ministerio meo facio. Nec idem est possidere et alieno nomine possidere: nam possidet, cuius nomine possidetur, procurator alienae possessioni praestat ministerium.

Translation: (Celsus in the 23d book of his Digesta)“^[56]

What I possess in my own name I can also commence to possess in the name of another. I do not change thereby the causa [“legal basis”] of my possession, but I cease to be the possessor and I make another the possessor by my aid. To possess and to possess in the name of another are not the same thing. For only he in whose name the possession is held is the “possessor” (in a strict sense); a procurator only provides the means for another's possession.

Note on the Text:

The theoretical foundation of the constitutum possessorium [“possessory agreement”] that is offered here by Celsus might originally have been linked to an actual case that has been deleted by the compilers. The abrupt appearance of the procurator in the last clause is an indication of such abbreviation.

Discussion Questions [with model answers]:

1)      How does Celsus distinguish the constitutum possessorium from the rule of “nemo sibi ipse...”?

2)      Construct a concrete case to which the abstract argument of Celsus would apply.

3)      Could the decision of Trebatius in D 18.6.1.2 (Case 11) be understood as an acceptance of the constitutum possessorium?

4)      Do you think that Celsus would consider an abstract agreement, by which the current possessor henceforth holds the property in the name of the new possessor, sufficient to effect a transfer of possession in the absence of a con­crete causa detentionis [“reason to continue holding”] (e.g., a contract to keep the property, lease agreement, etc.)?

5)      What policy argument speaks in favor of requiring a legal transaction and against the sufficiency of an abstract possessory agreement?

6)      Does the constitutum possessorium violate the Roman principle that excludes acquisition of possession through the agency of another person who is not “in power?”

7)      What logical connection is there between constitutum possessorium and tradi­tio brevi manu?

Answers:

1)      The transferor is not changing the basis of his possession; he is transferring his possession.

2)      A procurator first acquires a piece of property in his own name and then informs the dominus [“owner”]; thereafter he holds the property at the latter's disposal.

3)      No. There would have to have been an express agreement that the seller would henceforth hold the dolium [“wine jar”] in the name of the buyer. The presence of the property, or even affixing a seal to it, would be superfluous if possession were acquired in this manner.

4)style='font:7.0pt "Times New Roman"'>      No. A concrete causa is the basis of the text that follows: i.e., the procurator of the Celsus text indicates that a mandatum [i.e., a principal's instruction to his agent] is the causa detentionis.

5)   Inadequate publicity.

6)   Yes.

7)   Waiver of physical transfer.

Compare with this Case:

§ 319 Austrian Civil Code:

The holder of a piece of property is not authorized to change unilaterally the basis of his custody and thereby to lay claim to title; however, the person who lawfully possessed a piece of property in his own name up to that point in time can transfer the right of possession to another and thereafter hold it in the other's name.^[57]

§ 428 (first half) Austrian Civil Code (quoted at Case 12)

§ 930 German Civil Code:

If the owner is in possession of the property, delivery of possession can be replaced by agreement of a legal relationship between him and the acquirer, in virtue of which the acquirer gets indirect possession.^[58]

Literature:

Hausmaninger (Case 15) 405 ff.

Gordon (Case 2) 27 ff.

Weyand, S. Der Durchgangserwerb in der juristischen Sekunde: Systemdenken Oder Problemdenken Im Klassischen römischen Recht, Vol. Bd. 143. Göttingen: O. Schwartz, 1989, 108 ff.

D 41.2.19 pr. (Marcellus libro septimo decimo digestorum)

Qui bona fide alienum fundum emit, eundem a domino conduxit: quaero, utrum desinat possidere an non. Respondi: in promptu est, ut possidere desierit.

Translation: (Marcellus in the 17th book of his Digesta)^[59]

Someone has bought another's piece of land in good faith and later leases the prop­erty back from the owner. I ask whether he ceases to be in possession or not. I answered: it is clear that he has ceased to be in possession.

Sketch of the fact situation: Seller

Buyer and Renter

Owner

Discussion Questions:

1)      What legal position has the buyer of the land first obtained [cf. fn. 3 on p. 1]

2)      What later causes him to execute a lease agreement?

3)    Why does he cease to be in possession?

4)    What happens with the possession after conclusion of the lease agreement?

Literature:

Gordon (Case 2) 22 ff.

D 41.2.21.2 (lavolenus libro septimo ex Cassio)

Qui alienam rem precario rogavit, si eandem a domino conduxit, possessio ad dominum revertitur.

Translation: (Javolenus in the seventh book of his Abridgement of Cassius)^[60]

If someone's request to use property has been granted, and he later leases the same property from the owner, the possession reverts to the owner.

Discussion Questions:

Formulate the factual situation and legal question. Justify the jurist's decision (cf. Case 18).

Literature:

Manthe, U. Die Libri Ex Cassio Des Iavolenus Priscus, Vol. n.F., Bd. 4. Berlin: Duncker & Humblot, 1982, 200 ff.

Gordon (Case 2) 22 ff.

D 6.1.77 (Ulpianus libro septimo decimo ad edictum)

Quaedam mulier fundum non marito donavit per epistulam et eundem fundum ab eo conduxit: <... >^[61] posse defendi in rem ei competere, quasi per ipsam adquisierit posses­sionem veluti per colonam. Proponebatur, quod etiam in eo agro qui donabatur fuisset, cum epistula emitteretur: quae res sufficiebat ad traditam possessionem, licet conductio non intervenisset.

Translation: (Ulpian in the 17th book of his Commentary on the Praetor’s Edict)^[62]“⁴

A woman has by means of a letter both given a piece of land to a man who is not her husband^[63] and leased the property back from him: it could be argued that he has standing to bring an actio in rem,^[64] since he acquired possession through her as through a tenant. It was proposed that he was even on the land that had been given when the letter was sent. This circumstance sufficed to transfer possession, even if there had not been a lease agreement.

name=bookmark508>Discussion Questions:

1)   Formulate the two different fact-situations that are considered by Ulpian.

2)   What actio in rem is meant, and why does the man have standing to bring it?^[65]

3)   What significance does the letter have for acquisition of possession?

4)   At what time and in what manner has the donee acquired possession?

5)      Compare the conditions of acquisition (corpore et animo) as between the two fact-situations.

Literature:

Gordon (Case 2) 15 ff.

D 41.2.48 (Papinianus libro decimo responsorum)

Praedia cum servis donavit eorumque se tradidisse possessionem litteris declaravit. Si vel unus ex servis, qui simul cum praediis donatus est, ad eum, qui donum accepit, pervenit, mox in praedia remissus est, per servum praediorum possessionem quaesitam cetero- rumque servorum constabit.

Translation: (Papinian in the 10th book of his Opinions)^[66]

Someone has given away a farm with its slaves and declared by letter that he has transferred possession of them. Now if even one of the slaves who was given along with the farm came to the donee and was immediately sent back to the farm, it will be certain that possession of the farm and its other slaves has been acquired.

Note on the Text:

On constabit (“it will be certain that”), see under Case 41.

Discussion Questions:

1)   At what time and in what manner has the donee acquired possession?

2)    Why is constitutum possessorium not considered?

Literature:

Gordon (Case 2) 26 ff.

Legal competence is the capacity to acquire rights and obligations through one's own legally effective transactions. It is entirely or partially lacking in those persons to whom the legal order denies the capacity to make rational, legally enforceable commitments. Generally speaking, such persons in Roman law are children, the insane, women, and spendthrifts. Although the concepts of “legal competence” and “legal capacity” did not yet explicitly exist in Roman law, the texts clearly show the beginnings of their expression. Certainly the Roman jurists distinguish between acquiring possession as a factual event (acquisition of actual control over a thing) and acquiring possession as a legal matter. In the case of the latter, they placed more restrictive requirements on the acquirer's maturity of volition (see Case 22 on this issue).

Persons-in-power (the uxor in manu,^[67] family children, slaves) could not manage their own property rights. Due to its legal character they also could not exercise possessio for themselves—see Case 23 (D 41.2.49.1 Papinian). They could, however, serve as “tools” or “instruments” through which to acquire rights or possession on behalf of the person in whose power they were. The classical jurists reached various decisions and provided divergent rationales in developing the doctrine of acquiring possession through persons-in-power. Apart from the question of the degree to which the acquisition of possession by a person holding power depended to greater or lesser extent on the person's actual knowledge and wishes, the jurists chiefly considered the problem of what legal or factual connection between the power-holder and the person­in-power ([the issues of] potestas [“legitimate power”], possessio, actual possibil­ity of control, participation in the management of affairs) justified considering the taking of physical possession by a person-in-power as sufficient corpore for the power-holder. As far as concerned the personal intentions of the person­in-power, the general rules on legal competence and capacity to acquire pos­session were applicable.

Acquiring possession through a person who is not in power is possible only exceptionally in classical Roman law. If Titius authorizes his friend, Seius, to buy something for him, he does not take possession at the time when the property is delivered to Seius, but only when Seius hands the property over to Titius (see Case 35); however, if a guardian takes possession for his ward, the late classical jurists will count this as possession by the ward. The same applies to the curator^[68] and even the procurator.

Literature:

Benöhr, Hans-Peter. Der Besitzerwerb durch Gewaltabhängige im Klassischen römischen Recht. Berlin: Duncker & Humblot, 1972.

Wieacker, Fr. IURA 12 (1961) 371 ff. (rev. of Nicosia, G. LAcquisto Del Possesso Mediante i Potestati Subiecti. Milano: Giuffre, 1959).

Watson, A. “Acquisition of Possession Per Extraneam Personam.” RHD 29 (1961) 22-42 (reprinted in Studies in Roman Private Law. Rio Grande, OH: Hambledon Press, 1991, 63 ff.).

______. “Acquisition of Ownership by Traditio to an Extraneus,” SDHI 33 (1967) 189-209 (reprinted in Studies in Roman Private Law. Rio Grande, OH: Hambledon Press, 1991, 109 ff.).

Berneisen, E. “Per Liberam Personam,” RIDA 6 (1959) 249-291.

Claus, Axel. Gewillkürte Stellvertretung Im Römischen Privatrecht, Vol. Bd. 25. Berlin: Duncker & Humblot, 1973.

Krüger, Wolfgang. Erwerbszurechnung kraft Status. Berlin: Duncker & Humblot, 1979.

Krenz, Uwe. “Der Besitzerwerb ‘Per Procuratorem',” Labeo 43.3 (1997) 345-364.

CASE 22

D 41.2.1.3 (Paulus libro quinquagensimo quarto ad edictum)

Furiosus et pupillus sine tutoris auctoritate non potest incipere possidere, quia affec­tionem tenendi non habent, licet maxime corpore suo rem contingant, sicuti si quis dormienti aliquid in manu ponat. Sed pupillus tutore auctore incipiet possidere. Ofilius quidem et Nerva filius etiam sine tutoris auctoritate possidere incipere posse pupillum aiunt: eam enim rem facti, non iuris esse: quae sententia recipi potest, si eius aetatis sint, ut intellectum capiant.

Translation: (Paul in the 54th book of his Commentary on the Praetor’s Edict)^[69]

Discussion Questions:

1)      To what degree is it illuminating to treat a madman, a child, and a sleeping person alike with respect to acquiring possession?

2)      Do only Nerva and Ofilius distinguish between capacity to acquire posses­sion and legal capacity, or does Paul also?

3)      Do you think that Ofilius and Nerva would have permitted a four-year-old child to acquire possession without auctoritas tutoris? (On age and legal capacity, see Case 86).

4)   Is there a firm age of understanding that you would apply in this case?

Compare with this Case:

§ 310 Austrian Civil Code:

Children under seven years of age and persons over seven who do not have the use of reason can—except in the cases of § 151 subsec. 3—only take possession through their legally recognized representative. In other cases the capacity for independent acquisition of possession is granted.^[70]

§ 151 subsec. 3 Austrian Civil Code:

If an underage child concludes a business transaction that is customarily concluded by underage children of his age, and concerns a minor matter of daily life, this business transaction... retroactively becomes legally effective with the fulfillment of the obligations that concern the child.^[71]

b. Acquiring Possession through Persons-in-Power

i.         Acquiring Possession and Capacity to Own Property

CASE 23

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, set et iuris est.

Translation: (Papinian in the second book of his Definitions)⁶¹

Whoever is in another's power (potestas) can keep a peculium^{style='font-size:8.0pt; font-family:"Book Antiqua",serif;color:black;font-weight:bold'>[72] [73]} but not possess it, because possession is not only a physical but also a legal condition.

Discussion Questions:

1)   Are sons of the family and slaves equally lacking financial capacity?

2)      What economic goal does peculium serve and what legal position does it confer on the holder?

3)      Explain the basis of Papinian's decision (cf. Case 22: rem facti, non iuris esse “an issue of fact and not of law”).

Literature:

Benöhr, Hans-Peter. Der Besitzerwerb durch Gewaltabhängige im klassischen römischen Recht. Berlin: Duncker & Humblot, 1972, 66, 77 ff.

ii.        Acquisition through One’s Slaves and Children

CASE 24

D 41.2.3.12 (Paulus libro quinquagensimo quarto ad edictum)

Ceterum animo nostro, corpore etiam alieno possidemus, sicut diximus per colonum et ser­vum, nec movere nos debet, quod quasdam etiam ignorantes possidemus, id est quas servi peculiariter paraverunt: nam videmur eas eorundem et animo et corpore possidere.

Translation: (Paul in the 54th book of his Commentary on the Praetor’s Edict)^[74]

Moreover we possess with our own animo but with corpore of another, as we have said through a tenant farmer or a slave; and it should not distract us that we pos­sess certain things even without our knowledge: i.e., the property which our slaves have acquired for their peculium. For we possess such property by means of the corpus and the animus of the slaves.

Discussion Questions [with model answers]:

1)      Do you think that Paul is thinking of the constitutum possessorium in reference to acquiring possession through a tenant?

2)      With the formulation “animo nostro, corpore alieno" is Paul considering slaves as merely tools or also as representatives of the wishes of the dominus?

3)      Can one [reasonably] say that in the case of acquisition on the basis of pecu­lium the animus possidendi of the slave represents the animus possidendi of the dominus?

color=black face="Book Antiqua">4)      Read Paul's reasoning in D 42.1.2.5 (Case 25) and evaluate it against the reasoning of this case (D 41.2.3.12).

Answers:

1)      Possibly yes. Certainly the “possessory agreement" (constitutum possessorium) is a special way of acquiring possession, one in which the person who for­merly possesses in his own name transfers possession to the acquirer while retaining the property for his own use, thereafter holding it (e.g., as a tenant) in the name of the new possessor.

In the present case Paul seems to be thinking of a dominus who sends to a purchased piece of land a tenant or a slave, through whom he acquires physical possession of the property by means of a “long hand" or a “tool." Nevertheless, acquisition of possession through persons who are not in power is only exceptionally recognized as valid, even if they are functioning as mere “tools." Perhaps in the case of a colonus [“tenant farmer"], as with a procurator, a representative is allowed to acquire possession because of the great practical dependence on such persons.

2)      To act as a representative is to give or receive an expression of intent on behalf of another person and in that person's name, so that the effects of the legal transaction apply to the other person directly. Mere assistants (e.g., messengers who only communicate information) are not representatives of another's wishes. In view of this, if one should speak of representation only in terms of legally binding transactions, and if one can speak of a person-in- power, especially a slave who has no legal competence, as a “representative,” it becomes clear from Paul's formulation that he is here thinking of the slave as only a tool. Yet even if the slave is only an instrument, one must expect of him a “natural awareness” of the acquisition, an intention to exercise actual control. It is not necessary (or relevant) whether the intent is to acquire pos­session for the dominus.

3)      Yes. Concessio peculii [“a grant of peculium”] means handing over total control for the management of property for conducting a business, etc. The person­in-power in this situation also represents the power-holder's will. A general and abstract possessory will of the dominus inheres in the grant of full con­trol. That intent can then be concretized in a specific case.

4)      The acquisition of property for a peculium without the specific knowledge of the dominus also follows from the principle of animo nostro, corpore alieno. The abstract and general animus of the dominus naturally requires concreti- zation through the person-in-power, so that one can speak of acquisition of possession animo servorum [“with the animus of one's slaves”] (D 41.2.3.12 eorundem et animo et corpore [“with the animus and corpus of the same per­sons”]) in the same way as acquisition animo nostro [“with our animus”] (D 41.2.1.5 nostra voluntate [“with our will”] in Case 25).

Literature:

Benohr (Case 23) 46 ff.

MacCormack (Case 13) 131 ff.

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 habere permiseri­mus. Igitur ex causa peculiari et infans et furiosus adquirunt possessionem et usucapiunt, et heres, si hereditarius servus emat.

Translation: (Paul in the 54th book of his style='font-size:8.5pt;line-height:115%;font-style: italic'>Commentary on the Praetor’s Edict)^[75]

Likewise through a slave or a son-in-power we acquire possession, even of those things that they hold in their peculium without our knowledge—which is the view of Sabinus, Cassius, and Julian—because they are understood to take possession according to the intentions of us, who permitted them to have a peculium. Therefore, even an infant or a madman can take possession and usucapt on the basis of pecu­lium, as can an heir, if a slave belonging to the estate makes a purchase.

Note on the Text:

On intellegantur (“they are understood to.. .”), see Case 72.

Discussion Questions:

1)      Titius instructs his slave to purchase a ring and then goes on a trip. The slave acquires the ring the next day. Titius first learns of the acquisition upon his return. At what point in time has he obtained possession of the ring?

2)      Why does one in principle expect the dominus to have knowledge of the slave's taking of possession?

3)      Why does one not ascribe to the dominus the intention of possessing any­thing that any of his slaves acquires by any means?

4)      Using economic arguments, provide a rationale for Paul's decision that a dominus acquires possession “even of those things that [persons in our power] hold in their peculium without our knowledge.”

5)      How can acquisition for a peculium in favor of an infans [“infant”: i.e., a child below the age of seven] or a furiosus [“insane person”] come about, given that these cannot give a peculium nor express legally binding wishes?

6)      Paul speaks here only of a slave and a son-in-power. Do you think possession could be acquired through a daughter-in-power or a female slave? Through a servus furiosus [“an insane slave”]? A servus impubes [“a minor slave”]? A four-year-old slave-child?

Literature:

Benohr (Case 23) 91.

D 41.2.44.1 (Papinianus libro vicensimo tertio quaestionum)

Quaesitum est, cur ex peculii causa per servum ignorantibus possessio quaereretur. Dixi utilitatis causa iure singulari receptum, ne cogerentur domini per momenta species et causas peculiorum inquirere. Nec tamen eo pertinere speciem istam, ut animo videatur adquiri possessio: nam si non ex causa perculiari quaeratur aliquid, scientiam quidem domini esse necessariam, sed corpore servi quaeri possessionem.

Translation: (Papinian in the 23rd book of his Legal Questions)^[76]

Antiqua">It has been asked why even unwitting possession should be acquired through the peculium of a slave. I answered that this exceptional rule has been adopted for practical reasons: in order that the power-holder not be required to inves­tigate each and every transaction affecting the peculium. However, the case in which possession counts as acquired animo does not belong here: indeed, if something is acquired other than for the peculium, the knowledge of the power­holder is necessary—although physically the possession is acquired through the slave.

Notes on the Text:

Papinian gives a rationale for the decision combined with acknowledgment that the decision stands as an anomaly of juristic law (utilitatis causa iure singulari receptum [“this exceptional rule has been adopted for practical reasons”]). He then tries to distinguish between acquiring possession through a person-in-power and acquir­ing possession animo.

Roman jurists often appeal to utilitas (usefulness, consideration of practical needs) as an argument for justifying a decision. In doing so they not infrequently give preference to a practical solution over one that is logically consistent.

Discussion Questions:

1)      What does utilitatis causa [“for practical reasons”] actually mean? Can you expand on the viewpoint of Papinian's considerations?

2)      Ius singulare is an “exceptional rule” which takes precedence over an estab­lished legal principle (Paulus D 1.3.16). Try to give the principle and the exception a precise formulation. On receptum est [“has been adopted”], see Case 31.

3)      Like Paul (D 41.2.3.12 = Case 24), Papinian sees the acquisition of pos­session through a person-in-power as effected animo nostro corpore alieno.

How can one distinguish this from acquisition animo? Where would you place thecase inwhichsomeoneappointsa slave towatchawoodpile(cf.D41.2.51 = Case 10)?

Literature:

Benöhr (Case 23) 92 ff.

Wubbe, F. B. J. “Ius Singulare Quid Sit,” in Ars Boni Et Aequi : Festschrift für Wolfgang Waldstein zum 65. Geburtstag. Stuttgart: F. Steiner, 1993, 451-469, at 460 ff.

iii.     Acquisition through bona fide serviens and through usufructuarius^[77]

CASE 27

Gai. Inst. 2.94

De illo quaeritur, an per eum servum, in quo usumfructum habemus, possidere aliquam rem et usucapere possimus, quia ipsum non possidemus. Per eum vero, quem bona fide possidemus, sine dubio et possidere et usucapere possumus. Loquimur autem in utrisque personis secundum definitionem, quam proxume exposuimus; id est si quid ex re nostra vel ex operis suis adquirant, id nobis adquiritur.

Translation: (Gaius in the second book of his Institutes)^[78]

There is a question whether we can possess and acquire by prescription through a slave in whom we have only a usufruct, since we do not possess the slave itself. Certainly we can possess and acquire by prescription through someone whom we possess in good faith. As regards both types of persons, however, we observe the distinction that we have already made: i.e., whatever they acquire with means that we have provided, or by means of their own labor, is acquired for us.

Notes on the Text:

Gaius refers to his statements at Inst. 2.91 that (according to established doctrine) the slave in whom someone has a usufruct acquires ownership for the usufructuary [if the purchase is] ex re nostra vel ex operis suis [“with means that we have provided, or by means of their own labor”], but extra eas causas [“apart from those reasons”] (e.g., property acquired by inheritance or legacy) the acquisition is for the slave's owner.

In Inst. 2.92 Gaius continues: “The same applies in reference to a person who is acting in the good faith belief that he is our slave (bona fi de serviens), whether he is a free man or another's slave... Therefore what has been acquired by him apart from these two grounds of acquisition belongs either to himself (if he is free) or to his owner (if he is a slave).”^[79] The homo liber bona fide serviens is a free man who mistakenly believes he is a slave and who is also in good faith thought to be a slave by the person whom he serves.

With negative statements like “doubtless” (sine dubio) or “there is no doubt” (nulla dubitatio est, procul dubio est, non dubitatur, etc.), as frequently as with posi­tive ones like “it is established” (constat), “the established doctrine” (placet, placuit), “it is accepted” (receptum est), “it is certain” (certum est), Roman jurists rely upon established juristic doctrine that removes any need for further argument.

Discussion Questions:

1)      Does Gaius consider possession of the slave to be a precondition for acquir­ing possession through a slave?

2)      On the basis of what factors does Gaius let the slave in whom someone owns a usufruct acquire possession sometimes for the usufructuary and sometimes for the owner?

3)      With reference to the possessor do you think it makes sense to consider the homo liber bona fide serviens [“free man who mistakenly believes he is a slave”] to be in the same position as another's slave who is mistakenly possessed (i.e., as one's own) in good faith?

Literature:

Benohr (Case 23) 35 ff.

D 41.2.1.6 (Paulus libro quinquagensimo quarto ad edictum)

Sed et per eum, quem bona fide possidemus, quamvis alienus sit vel liber, possessionem adquiremus. Si mala fide eum possideamus, non puto adquiri nobis possessionem per eum: sed nec vero domino aut sibi adquiret, qui ab alio possidetur.

Translation: (Paul in the 54th book of his Commentary on the Praetor’s Edict)^[80]

Discussion Questions:

1)   Does Paul let the bona fide serviens acquire only for his possessor?

2)      Compare Paul's decision with that of Gai. Inst. 2.94 (Case 27) and try to make sense of the different views.

Literature:

Benohr (Case 23) 30, 39, 78 ff.

D 41.1.21 pr. (Pomponius libro undecimo ad Sabinum)

Si servus meus tibi bona fide serviret et rem emisset traditaque ei esset, Proculus nec meam fieri, qui servum non possideam, nec tuam, si non ex re tua sit parata. Sed si liber bona fide tibi serviens emerit, ipsius fieri.

Translation: (Pomponius in the 11th book of his Commentary on the Ius Civile of Sabinus)^[81]

If my slave, who is serving you in good faith, buys property and it is delivered to him, Proculus says that the property neither passes into my ownership, because I do not possess the slave, nor into yours, unless the property is acquired with your money. But if a free person, who is acting as your slave in good faith, has bought property, it passes into his own ownership.

Discussion Questions:

1)      According to Proculus and Pomponius, does the homo liber bona fide serviens acquire only for himself?

2)      Can the homo liber bona fide serviens acquire possession for himself even if he believes that he is a slave and that he is acquiring for his dominus? (The problem of animus possidendi [“possessory intent”].)

3)      For whom would Proculus and Pomponius let a servus usufructuarius [“slave of whom someone has the usufruct”] acquire possession?

Literature:

Benohr (Case 23) 68 ff.

D 41.2.1.8 (Paulus libro quinquagensimo quarto ad edictum)

Per eum, in quo usum fructum habemus, possidere possumus, sicut ex operis suis adquir- ere nobis solet: nec ad rem pertinet, quod ipsum non possidemus: nam nec filium.

Translation: (Paul in the 54th book of his Commentary on the Praetor’s Edict)^[82]

We can acquire possession through a slave in whom we have the usufruct, just as he regularly acquires for us through his efforts. And it is irrelevant that we do not possess him: we also do not possess a son.

Discussion Questions:

Try to provide a sure foundation for Paul's decision in favor of acquiring posses­sion through a usufructuary slave, and compare your argument with Gaius Inst. 2.94 (Case 27), Proculus/Pomponius D 41.1.21 pr. (Case 29), and Paul D 41.2.1.6 (Case 28).

Literature:

Benohr (Case 23) 37, 80

iv.        Acquisition through servus fugitivus [“fugitive slave”]

CASE 31

D 41.2.1.14 (Paulus libro quinquagensimo quarto ad edictum)

Per servum, qui in fuga sit, nihil posse nos possidere Nerva filius ait, licet respondeatur, quamdiu ab alio non possideatur, a nobis eum possideri ideoque interim etiam usucapi. Sed utilitatis causa receptum est, ut impleatur usucapio, quamdiu nemo nactus sit eius possessionem. Possessionem autem per eum adquiri, sicut per eos, quos in provincia habe­mus, Cassii et Iuliani sententia est.

Translation: (Paul in the 54th book of his Commentary on the Praetor’s Edict)^[83]

The younger Nerva says that we can possess nothing through a fugitive slave, although it should be decided that as long as another does not possess him, he would be possessed by us and therefore in time acquired by prescription. But for reasons of practicality the view prevails that the prescription could be completed only as long as no one has taken possession of him. It is the opinion of Cassius and Julian that possession is acquired through him just as through those slaves that we have in the province.

Note on the Text:

Receptum est “it is recognized that,” “the view prevails that” refers to an established judicial doctrine that can support the decision in future cases without further argu­mentation. On utilitatis causa “for reasons of practicality,” see Case 26.

Discussion Questions:

1)      Does Nerva let possession by the dominus of the servus fugitivus be extin­guished? (cf. Case 46)

2)      The fugitive slave has taken away property of his dominus. Has the dominus thereby lost possession of the property?

3)      On what grounds could Nerva deny acquisition of possession through a ser­vus fugitivus?

face="Book Antiqua">4)      What parallels can be drawn between a servus fugitivus and a slave in the province?

5)      The fugitivus is taken by a third party. Can he acquire possession for that person? (Cf. Case 28)

Literature:

Benohr (Case 23) 129 ff.

CASE 32

Gai. Inst. 2.95

Ex iis apparet per liberos homines, quos neque iuri nostro subiectos habemus neque bona fide possidemus, item per alienos servos, in quibus neque usumfructum habemus neque iustam possessionem, nulla ex causa nobis adquiri posse. Et hoc est, quod vulgo dicitur per extraneam personam nobis adquiri non posse; tantum de possessione quaeritur, an per procuratorem nobis adquiratur.

Translation: (Gaius in the second book of his Institutes)^[84]

It follows from these considerations that there are no grounds on which possession can be acquired for us through free men who are neither in our power nor pos­sessed in good faith by us, or through another's slaves of whom we have neither the usufruct nor iusta possessio [“valid possession”]. And that means, as is commonly said, one cannot acquire possession through other persons. The only issue regard­ing possession is whether it can be acquired for us through a procurator.

Note on the Text:

Vulgo dicta (“as is commonly said”) are legal maxims (rules of thumb) that are occa­sionally taken by the jurists as overly broad and are therefore narrowed by critical commentary (cf. Case 90).

Discussion Questions:

1)      Considering Cases 23 to 31, make a list of persons through whom a Roman paterfamilias^[85] can acquire possession.

2)   Can one unite all these cases under a unified viewpoint?

3)      Why exactly does the procurator present a new issue regarding acquisition of possession through a person not in power?

Compare with this Case:

§ 855 German Civil Code:

If someone exercises the actual control over a piece of property for another, in whose household or business or similar relationship on account of which he has to follow the other's instructions concerning the property, then only the other is the possessor.^[86]

Literature:

Watson, Alan. “Acquisition of Possession per Extraneam Personam.” RHD 29 (1961) 22-42, at 27 ff. (reprinted in Studies in Roman Private Law. Rio Grande, OH: Hambledon Press, 1991, 68 ff.

Pauli Sententiae 5.2.2

Per liberas personas, quae in potestate nostra non sunt, adquiri nobis nihil potest. Sed per procuratorem adquiri nobis possessionem posse utilitatis causa receptum est. Absente autem domino comparata non aliter ei, quam si rata sit, quaeritur.

Translation: (Opinions of Paul)^[87]

We cannot acquire anything through a free person who is not in our power. It is accepted, however, that for reasons of practicality we can acquire possession through a procurator. Still, in the absence of the dominus, possession counts as acquired by him only when he ratifies it.

Discussion Questions:

Compare the historical development of the doctrine of utilitatis causa receptum est [“it is accepted for reasons of practicality”] with Gai. Inst. 2.95 (Case 32) and Neratius (around a generation prior to Gaius) D 41.3.41 iam fere conveniat [“it is now generally recognized”] in Case 73. On utilitatis causa receptum, see also Case 26 and Case 31.

1)      How is acquisition of possession per procuratorem different from acquisition for a peculium through persons-in-power?

2)      Can the procurator also act as a representative of the intentions of the dominus?

3)      What utilitarian grounds speak in favor of acquisition of possession through a procurator?

4)      Try to explain the proviso: “absente autem domino” [“in the absence of the owner”].

Literature:

Watson (Case 32) 32 (reprinted in Studies 73).

Krenz, Uwe. “Der Besitzerwerb ‘Per Procuratorem.'” Labeo 43.3 (1997): 345-364, at 352 ff.

D 41.2.1.20 (Paulus libro quinquagensimo quarto ad edictum)

Perprocuratorem tutorem curatoremve possessio nobis adquiritur. Cum autem suo nomine nacti fuerint possessionem, non cum ea mente, ut operam dumtaxat suam accomodarent, nobis non possunt adquirere. Alioquin si dicamus per eos non adquiri nobis possessionem, qui nostro nomine accipiunt, futurum, ut neque is possideat cui res tradita sit, quia non habeat animum possidentis, neque is qui tradiderit, quoniam cesserit possessione.

Translation: (Paul in the 54th book of his Commentary on the Praetor’s Edict)^[88]

We acquire possession through a procurator, a tutor, or a curator:href="#_ftn89" name="_ftnref89" title="">^[89] however, if such persons acquire possession in their own name, not with the intention of merely providing a service, they cannot acquire possession for us. Otherwise, if we decide that we cannot acquire possession through such persons, it would follow that nei­ther he to whom the property has been transferred would have possession, since he lacks the intention to possess, nor would he who has transferred the property, since he has surrendered the possession.

Note on the Text:

Paul employs an argumentum ad absurdum: he seeks to support the correctness of his decision by showing the contrary view or alternative to be absurd (irrational, untenable). The argumentum ad absurdum is not infrequently introduced with the phrase alioquin dicendum (“otherwise one has to say”). Compare with Paul's deci­sion, however, Celsus D 41.2.18.2 (Case 43) and Paul D 41.2.1.6 (Case 28).

Discussion Questions:

1)      With persons-in-power, is intent necessary for possession to be acquired for another?

2)      Can an infans [a child under seven] acquire possession for himself, or only through his tutor [“guardian”]? Cf. Case 22 on this question.

3)      What arguments speak for treating the tutor and the curator alike? What arguments to the contrary do you think are possible?

Literature:

Watson (Case 32) 30 ff. (reprinted in Studies 71 ff.); Krenz (Case 33) 359 ff.

D 41.1.59 (Callistratus libro secundo quaestionum)

Res ex mandatu meo empta non prius mea fiet, quam si mihi tradiderit qui emit.

Translation: (Callistratus in the second book of his Legal Questions)^[90]

A thing that has been purchased pursuant to my directions does not become my property until he who purchased it delivers it to me.

Discussion Questions:

Interpret this text of the late classical Callistratus in light of the three texts dis­cussed above: Gai. Inst. 2.95 (Case 32); PS 5.2.2 (Case 33); Paulus D 41.2.1.20 (Case 34).

Literature:

Watson (Case 4) 199 (reprinted in Studies 119).

Claus, Axel. Gewillkürte Stellvertretung im Römischen Privatrecht, Vol. Bd. 25. Berlin: Duncker & Humblot, 1973, 183 ff.

D 41.1.20.2 (Ulpianus libro vicensimo nono ad Sabinum)

Si ego et Titius rem emerimus eaque Titio et quasi meo procuratori tradita sit, puto mihi quoque quaesitum dominium, quia placet per liberam personam omnium rerum posses­sionem quaeri posse et per hanc dominium.

Translation: (Ulpian in the 29th book of his Commentary on the Ius Civile of Sabinus)^[91]

If Titius and I have bought something and it has been delivered to Titius [as buyer] and as if [he were] my procurator, I think that I too have acquired the ownership, since according to the established doctrine possession of anything can be acquired through a free person, and therewith also ownership.

Discussion Questions:

1)      Formulate the fact-situation and then determine the logical connections between quasi...procuratori [“as if my procurator”], puto [“I think”], and placet [“the established doctrine is”].

2)      In connection with a jurist's name, placet expresses an individual legal opin­ion (e.g., Trebatio placuit “Trebatius was of the opinion that” Case 8). Without a jurist's name placet (placuit) refers to a generally established legal doctrine: “it is the established doctrine that.” Considering this usage and the late clas­sical texts above (Cases 33 to 35), what is your conclusion regarding the authenticity of this text? Has there been a post-classical reworking? In this connection compare Inst. Iust. 2.9.5: et hoc est, quod dicitur per extraneam personam nihil adquiri posse: excepto eo, quod per liberam personam veluti per procuratorem placet non solum scientibus, sed etiam ignorantibus vobis adquiri pos­sessionem secundum divi Severi constitutionem (“And this means, as is said, that nothing is acquired through an outside person: but with the exception, based on a constitution of the Emperor Severus, of what is acquired for you through a free person like a procurator—and not only with your knowledge, but also without it”).

Literature:

Watson (Case 4) 202 ff. (reprinted in Studies 122 ff.).

Flume, Werner. Rechtsakt und Rechtsverhältnis: Römische Jurisprudenz und Modernrechtliches Denken. n.F., Heft 56. Paderborn: F. Schöningh, 1990, 87.

Claus (Case 35) 189 ff.

D 41.1.65 pr. (Labeo libro sexto pithanon a Paulo epitomatorum)

Si epistulam tibi misero, non erit ea tua, antequam tibi reddita fuerit. Paulus: immo con­tra: nam si miseris ad me tabellarium tuum et ego rescribendi causa litteras tibi misero, simul atque tabellario tuo tradidero, tuae fi ent. Idem accidet in his litteris, quas tuae dumtaxat rei gratia misero, veluti si petieris a me, uti te alicui commendarem, et eas commendaticias tibi misero litteras.

Translation: (Labeo in the sixth book of Paul's Epitome of his Pithana)⁸⁸

If I send you a letter, it does not become your property before it is delivered to you. Paul: quite the opposite. For if you have sent me your courier, and I send you a letter in reply, the letter becomes your property as soon as I give it to your courier. The same applies to those letters that I send you in compliance with your wishes, as when you ask me to recommend you to someone and I send you the letter of recommendation.

Discussion Questions:

1)      Do you think that Labeo and Paul are making a distinction, as regards acquir­ing possession, between a person not in power and a tabellarius [“courier”] who is in power (i.e., a slave)?

2)      Why does Paul specify an answering letter and a letter of recommendation, but does not attribute to the dominus possession and ownership of all letters that are given to the tabellarius of another?

Literature:

Watson (Case 4) 201 ff. (reprinted in Studies 121 ff.)

Benohr, Hans-Peter. “Der Brief: Korrespondenz, Menschlich und Rechtlich Gesehen: Ciceros Briefe an Atticus und die Rechte an Briefen in Rom,” ZRG 115 (1998): 115-149, at 132 ff.

Claus (Case 35) 11f ff., 203 ff. ^[92]

D 47.2.14.17 (Ulpianus libro vicensimo nono ad Sabinum)

Si epistula quam ego tibi misi, intercepta sit, quis furti actionem habeat? Et primum quaerendum est, cuius sit epistula, utrum eius qui misit, an eius ad quem missa est? Et si quidem dedi servo eius, statim ipsi quaesita est, cui misi: si vero procuratori, aeque (quia per liberam personam possessio quaeri potest) ipsius facta est, maxime si eius interfuit eam habere. Quod si ita misi epistulam, ut mihi remittatur, dominium meum manet, quia eius nolui amittere vel transferre dominium...

Translation: (Ulpian in the 29th book of his Commentary on the Ius Civile of Sabinus)^[93]

If a letter that I sent to you is intercepted, who has the action for theft? And first it must be determined to whom the letter belongs, whether to him who sent it or him to whom it was sent. If I have given it to the slave of the addressee, the addressee has immediately acquired the ownership. Likewise, if I gave it to his procurator (because possession can be acquired through a free person), it has become his property, especially if it was a matter affecting his interests. But if I sent the letter with the intention of having it returned to me, the ownership remains mine, since I did not wish either to surrender or to transfer it.

Discussion Questions:

Write a short explanation of this case with reference to D 41.1.65 pr. (Case 37).

Literature:

Watson (Case 4) 204 ff. (reprinted in Studies 124 ff.)

Claus (Case 35) 194 ff.

Benohr (Case 37) 137 ff.