A. The rei vindicatio

Si paret rem, qua de agitur ex iure Quiritium Auli Agerii^[277] esse,

neque ea res restituetur,

intentio [“charge”]

clausula arbitraria [defendant's response to interlocutory order]

quanti ea res erit, tantam pecuniam iudex Numerium Negidium Aulo Agerio condemnato, si non paret, absolvito.

condemnatio [“judgment”]

Translation:

If it appears that the property, which this suit concerns, by Quiritary law belongs to the plaintiff,

and this property will not be restored [by the defendant],

then the judge must give judgment that the defendant pay as much money as the property is worth.

If it does not so appear, then he must absolve the defendant.

Notes on the Text:

The pleading-formula of the rei vindicatio is comprised of three clausulae:

The intentio [ = “statement of the charge”] indentifies the basis of the suit, the law on which the plaintiff bases his legal claim.

The condemnatio instructs the judge to condemn or absolve (in modern termi­nology of civil procedure, to award judgment to the plaintiff or the defen­dant); quanti ea res erit [“as much as the property is worth”] refers to the property's worth at the time of the judgment.

The clausula arbitraria [coming between the intentio and condemnatio] makes possible (provisionally compels) actual restitution of the property in place of compensation in money. The iudex (judge) evaluates the plaintiff's claim; if he finds it justified, he makes an initial ruling on the claim (pronuntiatio) and instructs the defendant to restore the property (iussum de restituendo [“order of restitution”]). According to the defendant's response to this ruling, there then follows the judge's final acquittal or imposition of an (increased) money judgment on the defendant.

a. Defendant's Liability to Suit

CASE 121

D 6.1.9 (Ulpianus libro sexto decimo ad edictum)

Officium autem iudicis in hac actione in hoc erit, ut iudex inspiciat, an reus possideat: nec ad rem pertinebit, ex qua causa possideat: ubi enim probavi rem meam esse, necesse habebit possessor restituere, qui non obiecit aliquam exceptionem. quidam tamen, ut Pegasus, eam solam possessionem putaverunt hanc actionem complecti, quae locum habet in interdicto uti possidetis vel utrubi. denique ait ab eo, apud quem deposita est vel commodata vel qui conduxerit aut qui legatorum servandorum causa vel dotis ventrisve nomine in possessione esset vel cui damni infecti nomine non cavebatur, quia hi omnes non possident, vindicari non posse. puto autem ab omnibus, qui tenent et habent restitu­endi facultatem, peti posse.

Translation: (Ulpian in the 16th book of his Commentary on the Praetor’s Edict)^[278]

The duty of the judge in this kind of suit [the rei vindicatio] will consist of this: that the judge investigates whether the defendant has possession; and regarding this question it will not be relevant on what grounds he has possession.

Some jurists, however, like Pegasus, think that this action applies only to the possession which is the subject of an interdictum uti possidetis or utrubi.^[279] Therefore, he claims, one cannot vindicate property from a depositary, or from someone to whom it has been given in loan [commodatum], or from someone who has rented it, or who holds it in order to preserve a legacy, or holds it in the name of a dowry or unborn child, or someone to whom the cautio damni infecti [“guarantee that no damage will be caused”] has not been given—since all of these are not pos­sessors.

But I believe that anyone can be sued, if he holds the property and has the capacity to return it.

Discussion Questions:

1)      What defenses can the defendant make against a rei vindicatio by the plaintiff?

2)      What speaks in favor of the opinion of Pegasus (limitations on the defen­dant’s liability to suit)?

3)  What arguments can be given in support of Ulpian’s decision?

Compare with this Case:

color=black face="Book Antiqua">§ 985 German Civil Code:

The owner can demand surrender of the property from the possessor.^[280]

§ 366 Austrian Civil Code (quoted under Case 131)

§ 369 Austrian Civil Code:

The plaintiff who brings an ownership suit must produce proof that the defendant has in his possession the property that is the subject of the suit, and that this prop­erty is the plaintiff's.^[281]

§ 375 Austrian Civil Code:

The person who possesses property in another's name can protect himself against an ownership suit by identifying the person in whose name he holds the property and proving his own role in the matter.^[282]

Literature:

Kaser, M.

D 6.1.27.1 (Paulus libro vicensimo primo ad edictum)

Possidere autem aliquis debet utique et litis contestatae tempore et quo res iudicatur. quod si litis contestationis tempore possedit, cum autem res iudicatur sine dolo malo amisit possessionem, absolvendus est possessor. item si litis contestatae tempore non possedit, quo autem iudicatur possidet, probanda est Proculi sententia, ut omnimodo condemnetur: ergo et fructuum nomine ex quo coepit possidere damnabitur.

Translation: (Paul in the 21st book of his Commentary on the Praetor’s Edict)^[283]

In principle one must be in possession both at the time of the litis contestatio [“joinder of issue”]^[284] and when the judgment is made. If, however, someone was in possession at the time of the litis contestatio, but has lost possession with­out dolus malus [“fraud, deceit”] at the time of the judgment, then the possessor should be absolved. Contrariwise, if he was not in possession at the time of the litis contestatio but did possess at the time of the judgment, the view of Proculus is approved: namely that he should be condemned anyway. He will therefore also be condemned for the fruits that were acquired from the time of taking possession.

Note on the Text:

Clearly present in this text is an abbreviated report of a juristic controversy. While the first sentence states a fundamental principle, the second refers to an exception which was advanced by the (victorious) Sabinian school. The third sentence identi­fies an exception stemming from the Proculians.

Discussion Questions:

1)  Justify the exception of the Sabinians.

2)  Explain the viewpoint of the Proculians.

face="Book Antiqua">3)      Create an example of loss of possession without dolus malus after the litis contestatio.

4)      Try to explain how the litis contestatio could come about, if the defendant were not the possessor. Why are the fruits awarded to the plaintiff not reck­oned from the time of the litis contestatio?

Literature:

Kaser (Case 121) 97 ff.

Wimmer, Markus. Besitz und Haftung des Vindikationsbeklagten. Köln: Böhlau, 1995, 12 ff.

D 6.1.7 (Paulus libro undecimo ad edictum)

Si is, qui optulit se fundi vindication, damnatus est, nihilo minus a possessore recte petitur, sicut Pedius ait.

Translation: (Paul in the 11th book of his Commentary on the Praetor’s Edict)^[285]

If someone defends a rei vindicatio of land (without being in possession of it) and is condemned, recovery can still be sought from the possessor, just as Pedius said.

Discussion Questions:

1)   What might be the motive for a non-possessor to submit to a rei vindicatio?

2)    How can extending liability to suit to this non-possessor be justified?

3)    How can double recovery by the plaintiff be justified?

Compare with this Text:

§ 376 Austrian Civil Code:

A person who [fraudulently] denies possession of property before a court, and is shown to have done so, must already for this reason alone relinquish possession to the plaintiff; although he retains the right to advance his own claim of ownership subsequently.^[286]

§ 377 Austrian Civil Code:

A person who claims to possess something that he does not possess and thereby deceives the plaintiff is liable for all damages arising therefrom.^[287]

§ 378 Austrian Civil Code:

A person who had property in his possession and, after notice of a lawsuit, let it go, must at his own expense recover it for the plaintiff, if the latter does not wish to sue the actual detentor, or pay compensation for the extraordinary worth of the same.name="_ftnref288" title="">^[288]

Literature:

Kaser (Case 121) 140 ff.

D 44/2/17 (Gaius libro trigensimo ad edictum provinciale)

Si rem meam at te petiero, tu autem ideo fueris absolutus, quod probaveris sine dolo malo te desisse possidere, deinde postea coeperis possidere et ego a te petam: non nocebit mihi exceptio rei iudicatae.

Translation: (Gaius in the 30th book of his Commentary on the Provincial Edict)^[289]

If I have sued you for my property, and you have been absolved because you could prove that without dolus you had ceased to possess it, and you later begin to pos­sess it again, and I bring a new suit against you, the defense of res judicata will not bar me.

Notes on the Text:

In modern civil procedure too the maxim ne bis in idem [“not twice against the same thing”] or ne bis de eadem re sit actio (“let there be no action twice in the same mat­ter”) is operative.

Discussion Questions:

Construct a concrete fact situation and explain the opinion of Gaius.

Literature:

Kaser (Case 121) 139.

Wimmer (Case 122) 18 ff.

b. Scope of the Defendant's Obligation of Restitution

CASE 125

D 6.1.33 (Paulus libro vicensimo primo ad edictum)

Fructus non modo percepti, sed et qui percipi honeste potuerunt aestimandi sunt: et ideo si dolo aut culpa possessoris res petita perierit, veriorem putat Pomponius Trebatii opinionem putantis eo usque fructuum rationem habendam, quo usque haberetur, si non perisset, id est ad rei iudicandae tempus: quod et Iuliano placet...

Translation: (Paul in the 21st book of his Commentary on the Praetor’s Edict)^[290]

Not only the actually harvested fruits are subject to valuation, but also those that could have been harvested lawfully. If, therefore, the property that is the subject of the suit is lost through the dolus or culpa of the possessor, Pomponius considers the opinion of Trebatius to be more correct: namely, that the fruits are reckoned up to the time they would have been reckoned if there had been no loss—i.e., up to the time when judgment is given. This opinion is also accepted by Julian....

Antiqua">Note on the Text:

On veriorem (“more correct”), see on Case 8.

Discussion Questions:

1)  Create a concrete fact situation to illustrate Paul’s decision.

2)      The plaintiff proves to the iudex [“judge”] that he would have drawn a greater quantity or higher quality of fruits if the field had been awarded to him at the time of the litis contestatio. Up to what point in time as regards the value of the fruits will the judge condemn the defendant?

3)      The sued for slave dies during the ownership suit. How will the jurists decide regarding the value of the fruits (i.e., the value of the slave’s labor)?

4)   Does the plaintiff get compensation also for property that has perished?

5)   What rule applies to the fruits that were harvested before the litis contestatio?

Compare with this Case:

D 6.1.79 (Labeo libro sexto pithanon a Paulo epitomatorum)

Si hominem a me petieris et is post litem contestatam mortuus sit, fructus quoad is vixerit aestimari oportet. Paulus: ita id verum esse puto, si non prius is homo in eam valetudinem inciderit, propter quam operae eius inutiles factae sunt: nam ne si vixisset quidem in ea valetudine, fructus eius temporis nomine aestimari conveniret.

Translation: (Labeo in the sixth book of Paul's epitome of his Pithana)^[291]

If you have sued me for a slave and he dies after the litis contestatio, the value of the fruits must be reckoned [only] for the time when he was still alive. Paul: I con­sider that correct, provided the slave was not so ill beforehand that his work was worthless. Because if he had lived in this state of ill health, one could have placed no value on the fruits during that time.

Literature:

Kaser, Max. Restituere als Prozessgegenstand: ein Beitrag zur Lehre von der materiellrech­tlichen Beschaffenheit der in iudicium deduzierten Ansprüche im klassischen römischen Recht, Hft. 16, 197. München: C. H. Beck, 1932, 192 ff.

Wimmer (Case 122) 77 ff.

D 6.1.16.1 (Paulus libro vicensimo primo ad edictum)

Culpa non intellegitur, si navem petitam tempore navigationis trans mare misit, licet ea perierit: nisi si minus idoneis hominibus eam commisit.

Translation: (Paul in the 21st book of his Commentary on the Praetor’s Edict)^{lang=EN-US style='font-weight:bold'>[292]}

It does not count as carelessness if someone sends a ship, which is the subject of a suit, out to sea during the time of navigation, even if it sinks—unless he entrusted it to men who were not suitable.

Note on the Text:

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

Discussion Questions:

1)      Would the defendant not be obliged to keep the ship in harbor up to the conclusion of the trial?

2)      What is the significance of the factual detail tempore navigationis (“the time of navigation”)?

3)      Can the owner sue the possessor who negligently let the ship sink prior to the litis contestatio?

4)      Is the defendant liable for a runaway slave who is the subject of suit?

Literature:

Wacke, A. “Gefahrerhöhung als Besitzerverschuulden,” in Festschrift für Heinz Hübner zum 70. Geburtstag am 7. November 1984, G. Baumgaertel et al. eds. Berlin, 1984, 673 ff.

Wimmer (Case 122) 48 ff.

D 6.1.15.3 (Ulpianus libro sexto decimo ad edictum)

Si servus petitus vel animal aliud demortuum sit sine dolo malo et culpa possessors, pretium non esse praestandum plerique aiunt: sed est verius, si forte distracturus erat petitor si accepisset, moram passo debere praestari: nam si ei restituisset, distraxisset et pretium esset lucratus.

Translation: (Ulpian in the 16th book of his Commentary on the Praetor’s Edict)^[293]

If a slave or other animal that is the subject of an ownership suit should die with­out dolus [“deceit/fraud”] or culpa [“fault”] of the possessor, most jurists say that compensation for the value does not have to be paid. But it is more correct, if the plaintiff had intended to sell the slave or beast after recovering it, for compensa­tion to be paid for the damage caused by delay. For if the possessor had restored the property to the owner, the latter would have sold it and obtained the sales price.

Notes on the Text:

The risk of accidental (caused by no one else) loss of property is normally borne by the owner: casum sentit dominus [“the owner feels the loss”]. Only in the case of wrongful damage or destruction through another's agency is compensation required. A basis for such liability can arise from the consequences of breach of contract or a delict: so the debtor responsible for delay is liable for casus [“acci­dent”] as is the thief. With regard to thieves, the following rule was formulated: fur semper in mora est (“a thief is always in delay”).

Discussion Questions:

face="Book Antiqua">1)      How would plerique [“most jurists,” as referred to in this case] have argued: i.e., those that would allow liability only for wrongful loss of property? On plerique and verius [“more correct”] see on Case 8.

2)      Do you think that Ulpian would absolve the defendant if the latter can show that the property would have been lost in the plaintiff's possession too, or the defendant could show that the plaintiff had received no firm offer to purchase?

3)  To what extent will the plaintiff's damages be compensated?

4)      How would Ulpian and how would plerique probably have decided in regard to the fruits?

Compare with this Text:

D 5.3.40 pr. (Paulus libro vicesimo ad edictum)

Illud quoque quod in oratione divi Hadriani est, ut post acceptum iudicium id actori praestetur, quod habiturus esset, si eo tempore quo petit restituta esset hereditas, inter­dum durum est. quid enim, si post litem contestatam mancipia aut iumenta aut pecora deperierint? damnari debebit secundum verba orationis, quia potuit petitor restituta hereditate distraxisse ea. et hoc iustum esse in specialibus petitionibus Proculo placet: Casssius contra sensit. in praedonis persona Proculus recte existimat, in bonae fidei pos­sessoribus Cassius. nec enim debet possessor aut mortalitatem praestare, aut propter metum huius periculi temere indefensum ius suum relinquere.

Translation: (Paul in the 20th book of his Commentary on the Praetor’s Edict)^[294]

That principle that is found in the oratio [“declaration”] of the deified [Emperor] Hadrian, namely, that after authorization to proceed with the lawsuit is granted, the plaintiff should be awarded what he would have had if the inheritance had been delivered to him at that time, often causes hardship. For example, what should happen if slaves or beasts of burden or heads of cattle should die after the litis con­testatio? According to the words of the oratio, the defendant must be condemned [for the full value], since the plaintiff, upon delivery of the inheritance, could have sold the property. And Proculus considers this correct in suits for specific property: Cassius holds the opposite view. With regard to a bad-faith possessor Proculus is correct, and Cassius is correct in the case of a good-faith possessor. For the posses­sor should not be liable for damage without fault, nor should he rashly give up his rights from fear of this result.

Literature:

Müller-Ehlen, Martina. Hereditatis petitio: Studien zur Leistung auf fremde Schuld und zur Bereicherungshaftung in der römischen Erbschaftsklage. Köln: Böhlau, 1998, 376 ff.

Willvonseder, Reinhard. Die Verwendung der Denkfigur der “condicio sine qua non” bei den römischen Juristen. Wien: Böhlau, 1984, 125 ff.

Wimmer (Case 122) 58 ff, 68 ff.

D 6.1.17 pr. (Ulpianus libro sexto decimo ad edictum)

Iulianus libro sexto digestorum scribit, si hominem, qui Maevii erat, emero a Titio, deinde cum eum Maevius a me peteret, eundem vendidero eumque emptor occiderit, aequum esse me pretium Maevio restituere.

Translation: (Ulpian in the 16th book of his Commentary on the Praetor’s Edict)^{style='font-weight:bold'>[295]}

Julian writes in the sixth book of his Digesta: if I have bought from Titius a slave who is the property of Maevius and, when Maevius seeks to recover him from me, I sell him to a buyer who kills him, it is fair that I pay the pretium (“price/value”) to Maevius.

Titius

Maevius o

ego ("I")

Discussion Questions:

1)    Could Maevius make a valid claim against Titius?

2)    Why does Maevius not turn to the last buyer?

3)    What is the liability of ego to a rei vindicatio?

4)      What conclusions do you draw from aequum esse [“it is fair”] as a basis for the decision? (On aequitas [“equity/fairness”] see under Case 130.)

5)      Does pretium restituere [“pay the pretium”] mean payment of the price actu­ally received by the seller, or payment of compensation for the value of the property?

Compare with this Case:

D 50.17.131 (Paulus libro vicesimo secundo ad edictum)

Qui dolo desierit possidere, pro possidente damnatur, quia pro possessione dolus est.

Translation: (Paul in the 22nd book of his Commentary on the Praetor’s Edict)^[296]

A person who surrenders possession with fraudulent intent is condemned as a pos­sessor, since the fraud takes the place of the possession.

Literature:

Wimmer (Case 122) 94 ff.

D 6.1.37 (Ulpianus libro septimo decimo ad edictum)

Iulianus libro octavo digestorum scribit: si in aliena area aedificassem, cuius bonae fidei quidem emptor fui, verum eo tempore aedificavi, quo iam sciebam alienam, videamus, an nihil mihi exceptio prosit: <. ..> nisi forte quis dicat prodesse de damno sollicito. puto autem huic exceptionem non prodesse: nec enim debuit iam alienam certus aedificium ponere: sed hoc ei concedendum est, ut sine dispendio domini areae tollat aedifi cium quod posuit.

Translation: (Ulpian in the 17th book of his Commentary on the Praetor’s Edict)^[297]

Julian writes in the eighth book of his Digesta: if I have erected a building on anoth­er’s land that I bought in good faith, but had already learned it was another’s when I built, let us see whether any defense is available to me. <. .. > unless perhaps someone would say that there would be a defense on the basis of “self-inflicted loss.” I believe, however, that there would be no defense for this defendant. For he ought not to have erected a building once he knew the land belonged to another. But this much can be granted to him: that he may, without damage to the owner of the property, remove the building he erected.

Note on the Text:

After Ulpian’s videamus, an mihi exceptio prosit (“let us see whether any defense is available to me”) there could have fallen out the report of a controversy, of which there survives only an argumentum ad absurdum: i.e., nisi forte quis dicat... sollicito (“unless perhaps... on the basis of self-inflicted loss”). For this formulation, see Case 85; on the argumentum ad absurdum, cf. Case 34.

Discussion Questions:

What claims can a good-faith builder validly make against the owner? On this question compare Celsus D 6.1.38 (Case 107 ). Should a bad-faith builder also be able to make valid claims against the owner?

Literature:

Bürger (Case 107) 73 ff.

MacCormack (Case 107) 83 ff.