Voluntary Surrender of Possession (unilaterally or through delivery; movable or immovable property)

CASE 39

D 41.2.3.6 (Paulus libro quinquagensimo quarto ad edictum)

Et si alii tradiderim, amitto possessionem.

Translation: (Paul in the 54th book of his Commentary on the Praetor’s Edict)^[96]

And if I transfer (a piece of land) to another, I lose the possession. For it is cer­tain that we possess only until we either voluntarily give up the possession or are forcibly driven from it.

Note on the Text:

On constat (“it is certain”), see under Case 41.

Discussion Questions:

1)      According to Paul, is possession of land extinguished if it is temporarily relinquished with a view to its return?

2)      At what point in time does Smith's possession end if he sells and delivers the land to Jones?

— With Smith's decision to give up the possession?

— With the announcement of this decision?

— With the vacating of the land by Smith?

— With Jones' taking possession of the land?

3)      When does Smith's possession end, if he decides—(a) on his own land, (b) in another place—that he does not wish to possess the land any longer?

4)      At what point does Smith's possession end, if he is forcibly driven from his land by Jones?

— With Jones' occupation of the land?

— With Smith's vacating of the land?

— With the failure of Smith's attempts to regain the land?

— With the cessation of Smith's attempts to regain the land?

— With the abandonment of Smith's intention to re-exert control over the land?

Compare with this Case:

§ 349 Austrian Civil Code:

The possession of a physical thing is normally lost, if the thing is lost without hope of being found; if it is voluntarily given up; or if it comes into another's possession.^[97]

§ 856 German Civil Code:

The possession is terminated if the possessor gives up or otherwise loses actual control over the thing.^[98]

D 41.2.3.6 (Paulus libro quinquagensimo quarto ad edictum)

In amittenda quoque possessione affectio eius qui possidet intuenda est: itaque si in fundo sis et tamen nolis eum possidere, protinus amittes possessionem.

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

Also in connection with the loss of possession one must look to the intention of the possessor. So, if you are on your piece of land and yet do not wish to possess it, you immediately lose the possession. Therefore one can lose the possession solo animo, although one cannot acquire possession in this way.

Discussion Questions:

1)    Do you think Paul considers that an expression of one's intent is required?

2)    What are some possible ways of voluntarily surrendering possession:

—          to a piece of land?

—          to movable property?

3)      Is Paul thinking of an abandonment or a delivery, or does his decision apply to both situations?

4)    Is Paul possibly thinking of a possessory agreement (constitutum possessorium)?

Literature:

MacCormack (Case 13) 134 ff.

D 41.2.29 (Ulpianus libro trigensimo ad Sabinum)

Possessionem pupillum sine tutoris auctoritate amittere posse constat, non ut animo, sed ut corpore desinat possidere: quod est enim facti, potest amittere.

Translation: (Ulpian in the 30th book of his Commentary on the Ius Civile of Sabinus)^[100]

It is established that a pupillus can lose possession without the auctoritas tutoris [“guardian's authorization”]. He cannot do so animo, but he can give up possession corpore. For what is of a purely factual character, he can lose. The situation is dif­ferent if he should wish to give up the possession animo: that he cannot do.

Note on the Text:

Constat (“it is established that”) refers to an uncontested judicial doctrine that is invoked as valid law. Comparable formulations are receptum est (“it is recognized,” see Case 31) or eo iure utimur (“we follow this rule,” see Case 156).

Discussion Questions:

1)   In which of the following cases does the pupillus lose possession (and why)?

— He unintentionally lets a ring fall into the sea.

— He deliberately throws the ring into the sea.

— He gives and delivers the ring to a friend.

— He gives his ring to a friend, who up to that point had been guarding the ring for him (with the auctoritas tutoris).

— He leaves his own land with a view to giving up possession of it.

— He gives and delivers the land to a friend.

— He gives the land to his tenant.

Literature:

MacCormack (Case 13) 138 ff.

D 41.1.11 (Marcianus libro tertio institutionum)

Pupillus quantum ad adquirendum non indiget tutoris auctoritate: alienare vero nul­lam rem potest nisi praesente tutore auctore, et ne quidem possessionem, quae est naturalis, ut Sabinianis visum est: quae sententia vera est.

Translation: (Marcian in the third book of his Institutes)^[101]

As far as concerns acquisition of possession, the pupillus does not require any auc­toritas tutoris; he cannot, however, alienate anything without the presence of his guardian as auctor [“authorizer”]: not even the possession, which is a factual mat­ter, as the Sabinians thought.

Discussion Questions:

1)      To what degree is the reference to the factual nature of the possession rel­evant here?

2)      To what degree is acquisition of possession by a pupillus without auctoritas tutoris recognized? (See Case 22.)

3)      How is it worthwhile to have different rules governing the acquisition as opposed to the surrender of possession by a pupillus?

4)      Is Marcian holding that the possessio of a pupillus remains in force despite the loss of control through delivery of the property to an acquirer?

D 41.2.18.2 (Celsus libro vicensimo tertio digestorum)

Si furioso, quem suae mentis esse existimas, eo quod forte in conspectu inumbratae quietis fuit constitutus, rem tradideris, licet ille non erit adeptus possessionem, tu possidere desinis; sufficiet quippe dimittere possessionem, etiamsi non transferas. Illud enim ridiculum est dicere, quod non aliter vult quis dimittere, quam si trans­ferat: immo vult dimittere, quia existimat se transferre.

Translation: (Celsus in the 23rd book of his Digesta)^[102]

If you have delivered a thing to a madman that you understood to be sane, say while he was in a state of complete tranquility, you have surrendered possession, although that one has not obtained the possession. For it is enough that you gave up the possession, even if you did not transfer anything to him.

Note on the Text:

Emotionally tinged criticism of the judicial opinions of other jurists with expres­sions like ridiculum (“laughable”), stultum (“stupid”) is very infrequently found in classical jurisprudence. Celsus seems to occupy an exceptional position with his polemical streak.

Discussion Questions:

1)      Following the opinion of Celsus, who is the possessor? Who is the possessor according to the contrary opinion that Celsus considers “laughable”?

2)      How might one argue in favor of the contrary opinion? Cf. D 41.2.34 pr. (Case 44) and D 43.16.18 pr. (Case 58).

3)      What persuasive effect does the argumentum ad absurdum of Celsus have? (On this question see Case 34.)

Literature:

Wieacker, Fr. “Amoenitates luventianae.” IURA 13 (1962) 1-21, at 15 ff.

Hausmaninger, H. “Publius luventius Celsus: Persönlichkeit und juristische Argumentation,” ANRWII/15 (1976) 394 ff.

D 41.2.34 pr. (Ulpianus libro septimo disputationum)

Si me in vacuam possessionem fundi Corneliani miseris, ego putarem me in fundum Sempronianum missum et in Cornelianum iero, non adquiram possessionem, nisi forte in nomine tantum erraverimus, in corpore consenserimus.

Translation: (Ulpian in the seventh book of his Disputations)^[103]

If you have directed me to the vacua possessio [“unimpeded possession”] of the fun­dus Cornelianus [“Cornelian farmstead”], and I go to it in the belief that I have been sent to the fundus Sempronianus [“Sempronian farmstead”], then I do not acquire possession, unless we have erred only about the name but agree about the physi­cal property.^[104] However, since we agree about the physical property, the question arises whether you lose the possession, because one can surrender and alter posses­sion animo, as both Celsus and Marcellus write. And if possession can be acquired animo, has it been acquired at all [in this case]? But I do not think that the mistaken person does acquire: therefore he who has surrendered the possession under a kind of condition will not lose it.

Discussion Questions [with model answers]:

1)  Which of the following three fact situations is Ulpian discussing?

a)       Smith wants to acquire the fundus Sempronianus.

Jones wants to alienate the fundus Cornelianus and sends Smith to the fun­dus Cornelianus.

Smith enters the fundus Cornelianus in the belief that he is entering the Sempronianus.

b)       Smith wants to acquire the fundus Cornelianus.

Jones wants to alienate the fundus Cornelianus and also sends Smith to the Cornelianus.

Smith enters the Cornelianus, but believes the farm is called Sempronianus (or both parties spoke erroneously of the Sempronianus but meant the Cornelianus).

c)       Smith wants to acquire the fundus Sempronianus.

Jones wants to alienate the fundus Sempronianus but erroneously sends Smith to the Cornelianus.

Smith enters the Cornelianus in the belief that it is the Sempronianus.

color=black face="Book Antiqua">2)   Point out the kinds of errors represented by each of the three fact-situations.

3)   According to Ulpian, has Jones lost possession of the fundus Cornelianus?

4)   Has Jones surrendered possession of the fundus Sempronianus “animo?”

5)   Has Smith acquired possession of the fundus Cornelianus?

6)   Did Smith get possession of the fundus Sempronianus?

7)   What is the relationship of Ulpian’s decision with Celsus D 41.2.18.1 (Case 43)?

Answers:

1)  Fact situation “c.”

2)      Variant “a”: disagreement over the object of the transaction. Variant “b”: falsa demonstratio [“erroneous identification”]. Variant “c”: shared error over the object of the transaction.

3)      No.Jones retains possession of the Cornelianus, since he did not wish to surrender possession of the Cornelianus but of the Sempronianus. Smith has not entered the Cornelianus as possessor; therefore Jones’ possession has not been disturbed.

4)      No. Jones has, so to say, given up the Sempronianus under a condition that Smith takes possession of it. Jones is therefore still the possessor.

5)      No. Smith has not acquired possession despite his entry upon the Cornelianus, since he lacked the corresponding animus. He did not in fact wish to take possession of this plot but another, the Sempronianus.

6)      No. Smith has not acquired possession of the Sempronianus, since acquisi­tion solo animo is only exceptionally recognized. (A question of constitutum possessorium would arise, and in this case the requisite mutual intent is oth­erwise lacking.)

7)      Ulpian opposes the opinion of Celsus, according to whom Jones loses pos­session in the Sempronianus, even if Smith does not acquire the possession of it. For Celsus it is legally irrelevant that Jones wanted to surrender the pos­session only so that Smith could acquire it. Ulpian thinks that the issue is not a trivial error of intent, but something like a condition of losing possession. Since the condition is not satisfied, Jones remains the possessor.

Literature:

MacCormack (Case 13) 136 ff.

Benöhr, Hans-Peter. “Irrtum und guter Glaube der Hilfsperson beim Besitzerwerb” in Studien im römischen Recht: Max Kaser Zum 65. Geburtstag gewidmet von seinen hamburger Schülern, Kaser, Max, Dieter Medicus, and Hans Hermann Seiler, edd., Heft 65. Berlin: Duncker & Humblot, 1973, 11 ff.

Watson, A. “Two Studies in Textual History.” RHD 30 (1962) 209-242 (reprinted in Studies in Roman Private Law. Rio Grande, OH: Hambledon Press, 1991, 363 ff).

Raap, Christian. “Der Irrtum beim Erwerb und beim Verlust des Besitzes: ein Deutungsversuch Zu D. 41, 2, 34 Pr.” ZRG 109 (1992) 501-504.

B.