Treasure-trove

CASE 99

D 41.1.31.1 (Paulus libro trigensimo primo ad edictum)

Thensaurus est vetus quaedam depositio pecuniae, cuius non exstat memoria, ut iam dominum non habeat: sic enim fit eius qui invenerit, quod non alterius sit.

Translation: (Paul in the 31st book of his Commentary on the Praetor’s Edict)^[214]

A treasure-trove is an old deposit of money (valuables), of which no memory exists, so that it no longer has any owner. So something that belongs to no one else becomes the property of the person who finds it. If, however, someone hides some­thing in the ground to seek profit or from fear or for protection, it is not treasure­trove: and it is subject to theft.

Discussion Questions:

1)      Does a deposit of money become treasure-trove as soon as someone forgets where he buried it? (see Case 47a)

2)   Does buried money become treasure-trove with the death of the owner?

3)      When is possession and when is ownership of concealed valuables extinguished?

Compare with this Case:

§ 397 Subsec.

If buried, walled-in, or otherwise concealed property of an unknown owner is uncovered, the rules that apply are analogous to those that are specified for lost property.^[215]

§ 398 Austrian Civil Code:

If the discovered property consists of money, jewelry, or other precious mate­rial, which has been concealed so long that its erstwhile owner can no longer be determined, then it is called a treasure-trove...72

See also § 399 ABGB, § 984 BGB, Art. 723 f. ZGB (reproduced under Case 100).

Literature:

Hill, George F. Treasure Trove in Law and Practice from the Earliest Time to the Present Day. Oxford: Clarendon Press, 1936; reprint Aalen: Scientia Verlag, 1980, 5ff.

Knutel (Case 8) 573 ff.

Mayer-Maly (Case 47a) 283 ff. ^[216]

D 41.2.3.3 (Paulus libro quinquagensimo quarto ad edictum)

Neratius et Proculus et solo animo [non] posse nos adquirere possessionem, si non ante­cedat naturalis possessio. Ideoque si thensaurum in fundo meo positum sciam, continuo me possidere, simul atque possidendi affectum habuero, quia quod desit naturali pos­sessioni, id animus implet. Ceterum quod Brutus et Manilius putant eum, qui fundum longa possessione cepit, etiam thensaurum cepisse, quamvis nesciat in fundo esse, non est verum: is enim qui nescit non possidet thensaurum, quamvis fundum possideat.

Translation: (Paul in the 54th book of his Commentary on the Praetor’s Edict)^[217]

Neratius and Proculus say that one could [not]^[218] also acquire possession solo animo, if there should be no naturalis possessio beforehand. Therefore, if I know that a trea­sure is buried on my land, I immediately begin to possess it as soon as I conceive the possessory intent, since the intent satisfies what is lacking from the naturalis possessio.

Now what Brutus and Manilius think, that someone who has acquired a plot by prescription also has acquired the treasure, even if he does not know that the treasure is buried on his land, is not correct. He who knows nothing of the trea­sure does not possess it, even if he does possess the land. In fact, even if he does know, he will still not acquire by prescription, since he knows it is another's property.

Many consider the opinion of Sabinus to be sounder. According to it, some­one who has obtained knowledge of the treasure first acquires possession of it by moving it from its place, since before that we do not have it in our custody. I agree with this position.

Notes on the Text:

As transmitted, the introductory statement—i.e., one could not acquire posses­sion solo animo unless one were already the naturalis possessor—does not fit the accompanying case description and its abstract reasoning: quia quod desit naturali possessions, id animus implet [ = “since the intent satisfies what is lacking from the naturalis possessio"].

Discussion Questions:

1)  Are Brutus and Manilius treating the thensaurus like part of the land?

2)      Under thensaurus [with the meaning of “treasure-trove"] is understood some valuable property that has been hidden for so long that its owner can no longer be determined (cf. Paul D 41.1.31.1 = Case 99). The Latin word is also used for any valuable property that belongs to another: e.g., for jew­elry or coins that the owner buried on his own or another's land from fear of passing robbers. Of which kind of thensaurus are Brutus and Manilius speaking?

3)New Roman"'>      Do you think sed et si sciat... quia scit alienum esse [“even if he does know... since he knows it is another's property"] is the legal view of Paul, or the gloss of a later editor?

4)      Explain the controversy between Proculus and Sabinus regarding treasure-trove.

Compare with this Case:

Inst. Just. 2.1.38

Hadrian grants half the trove to the finder and half to the land-owner.

§ 399 Austrian Civil Code:

Of a treasure-trove, the finder and the owner of the ground each receive half.^[219]

§ 984 German Civil Code:

If a piece of property, which has been concealed for so long that the owner is no longer able to be found (treasure-trove), is found and, following the discovery, taken into possession, then the ownership of half the property is acquired by the discoverer and half by the owner of the property in which the treasure-trove was concealed.^[220]

§ 723 Swiss Civil Code:

If a valuable object is found, concerning which it can be understood with certainty under the circumstances that it was concealed or buried for a long time and no longer has an owner, then it is considered to be treasure-trove.

The treasure-trove, except for objects that are determined to be of scientific value [724], passes to the owner of the land or movable property in which it was found.

The finder has a claim for reasonable remuneration, which, however, may not exceed half the value of the treasure-trove.^[221]

§ 724 Swiss Civil Code:

If a natural body or an antiquity of high scientific value is found, then the owner­ship is obtained by the canton of the territory in which it was found.

The owner, in whose land such objects are found, is obliged to permit excava­tion in return for indemnification of damage caused thereby.

The finder and, in the case of treasure-trove [723] also the owner have a claim for a reasonable remuneration, which, however, must not exceed the value of the objects.^[222]

Literature:

Backhaus, Ralph.

Hausmaninger (Case 10) 113 ff.

Hill (Case 99) 36 ff.

Knütel (Case 8) 571 ff.

D 6.1.67 (Scaevola libro primo responsorum)

A tutore pupilli domum mercatus ad eius refectionem fabrum induxit: is pecuniam invenit: quaeritur ad quem pertineat. Respondi, si non thensauri fuerunt, sed pecunia forte perdita vel per errorem ab eo ad quem pertinebat non ablata, nihilo minus eius eam esse, cuius fuerat.

Translation: (Scaevola in the first book of his Opinions)^[223]

Someone has purchased a house from the guardian of a ward and, for the purpose of renovation, has brought in a craftsman. This one found money there. It was asked to whom the money belonged. I answered: if it was not treasure-trove, but was money that was lost or mistakenly not taken by the owner, it belonged, even as before, to the erstwhile owner.

Discussion Questions:

1)      What is meant here by pecunia perdita [“money that was lost”]? Can one “lose” property in one's own house? Cf. Case 46 on this question.

2)   Who acquires ownership if the money is a true thensaurus?

3)      What significance does the factual detail a tutore pupilli [“from the guardian of a ward”] have?

4)      Before a trip, someone buried his valuables in another's land.

Compare with this Case:

§ 401 Austrian Civil Code:

If workmen find a treasure-trove in an accidental manner, then a [third] part of it belongs to them as finders. If, however, they were hired expressly to search for the treasure-trove, then they must content themselves with their ordinary pay.^[225]

Literature:

Mayer-Maly (Case 47a) 285.

Hill (Case 99) 14.

F.