Corpus iurisprudentiae Romanae

1 Paulus, On the Edict, Book LIV. Possession, as Labeo says, is derived from the term sedes, or position, because it is naturally held by him who has it; and this the Greeks designate katoxyn. 1Nerva, the son, asserts that the ownership of property originated from natural possession, and that the trace of this still remains in the case of whatever is taken on the earth, on the sea, and in the air, for it immediately belongs to those who first acquire possession of it. Likewise, spoils taken in war, and an island formed in the sea, gems, precious stones, and pearls found upon the shore, become the property of him who first obtains possession of them. 2We also acquire possession by ourselves. 3An insane person, or a ward, cannot begin to acquire possession without the authority of his curator or guardian; because, although the former may touch the property with their bodies, they have not the disposition to hold it, just as where anyone places something in the hands of a man who is asleep. A ward can begin to obtain possession by the authority of his guardian. Ofilius, and Nerva, the son, however, say that a ward cannot begin to obtain possession without the authority of his guardian, for possession is a matter of fact, and not of law. This opinion may be accepted where the ward is of such an age as to be capable of understanding what he is doing. 4Where a husband gives possession to his wife for the purpose of making her a donation, several authorities hold that she is in actual possession, as a question of fact cannot be annulled by the Civil Law. And, indeed, what use would it be to say that the wife is not in possession, as the husband immediately lost it when he no longer desired to retain it? 5We also acquire possession by means of a slave or a son who is under our control; and this is the case with property constituting his peculium, even if we are ignorant of the fact, as was held by Sabinus. Cassius and Julianus: because those whom we have permitted to have peculium are understood to be in possession with our consent. Therefore, an infant and an insane person can obtain possession of property forming peculium, and can acquire it by usucaption; an heir also can do this, where a slave belonging to the estate makes a purchase. 6We can also acquire possession through anyone whom we possess in good faith as a slave, even though he belongs to another, or is free. If, however, we have possession of him fraudulently, I do not think that we can acquire possession through his agency. He who is in possession of another can neither acquire property for his master nor for himself. 7When we are joint-owners of a slave, we can individually acquire property through him to the full amount, as if he were one of our own slaves, if he intends to make the acquisition for one of his masters; just as is the case of acquiring ownership. 8We can obtain possession through a slave in whom we have the usufruct in the same way that he is accustomed to acquire property for us by means of his labor; nor does it make any difference if we do not actually possess him, for the same rule applies to a son. 9Moreover, he through whom we desire to obtain possession should be such a person as to be able to understand what possession means. 10Therefore, if you send a slave, who is insane, to take possession, you will by no means be considered to have acquired it. 11If you send a boy under the age of puberty to take possession, you will begin to do so; just as a ward acquires possession, and especially by the authority of his guardian. 12There is no doubt that you can obtain possession by means of a female slave. 13A ward can acquire possession by means of a slave, whether the latter has arrived at the age of puberty, or not, if he directs him to take possession with the authority of his guardian. 14Nerva, the son, says that we cannot acquire possession by means of one of our slaves who is a fugitive, although it has been held that he remains in our possession as long as he is not in that of another; and therefore that, in the meantime, property can be acquired by him through usucaption. This opinion, however, is adopted on account of public convenience, so that usucaption may take place as long as no one has obtained possession of the slave. It is the opinion of Cassius and Julianus that possession may be acquired by such a slave, as well as by those whom we have in a province. 15Julianus says that we cannot acquire possession by means of a slave who has been actually given in pledge, for he is held to be possessed by the debtor in one respect, that is to say, for the purpose of usucaption. Nor can the slave who is pledged acquire property for the creditor, because although the latter may have possession of him, he cannot acquire property through him by means of a stipulation, or in any other way. 16The ancients thought that we could acquire anything by means of a slave belonging to an estate, because he was part of the said estate. Hence, a discussion arose whether this rule should not be extended farther so that where some slaves were bequeathed, the others could be possessed by the act of one of them. It was also discussed whether this would be the case if they were all purchased or donated together. The better opinion is that I cannot, under such circumstances, acquire possession by the act of one of them. 17If a slave is partially bequeathed to an appointed heir, he can acquire possession of the land of the estate for him, in proportion to his share in the said slave, by virtue of the legacy. 18The same rule will apply if I order a slave owned in common to accept an estate, because I obtain possession of my share of it on account of my interest in him. 19What we have stated with reference to slaves also applies where they themselves desire to acquire possession for us; for if you order your slave to take possession, and he does so with the intention of acquiring the property not for you, but for Titius, possession is not acquired for you. 20Possession is acquired by us by means of an agent, a guardian, or a curator. But when they take possession in their own names, and not with the intention of merely rendering their services, they cannot acquire possession for us. On the other hand, if we say that those who obtain possession in our name do not acquire it for us, the result will be that neither he to whom the property was delivered will obtain possession, because he did not have the intention of doing so, nor will he who delivered the article retain it, as he has relinquished possession of the same. 21If I order a vendor to deliver the property to my agent, while it is in our presence, Priscus says that it will be held to have been delivered to me. The same rule will apply if I order my debtor to pay to another the sum which is due to me, for it is not necessary to take possession bodily and actually, but this can be done merely by the eyes and the intention. The proof of this appears in the case of property which, on account of its weight, cannot be moved, as columns, for instance; for they are considered to have been delivered if the parties consent, with the columns before them; and wines are held to have been delivered when the keys of the wine-cellar have been handed to the purchaser. 22Municipalities cannot possess anything by themselves, because all the citizens cannot consent. They do not possess the forums, and the temples, and other things of this kind, but they make use of them promiscuously. Nerva, the son, says that they can acquire, possess, and obtain by usucaption, the peculium of their slaves; others, however, hold the contrary; as they do not have possession of the slaves themselves.

2 Ulpianus, On the Edict, Book LXX. The present rule is that municipalities can both hold possession and acquire by usucaption, and that this can be done through a slave, or a person who is free.

3 Paulus, On the Edict, Book LXX. Moreover, only corporeal property can be possessed. 1We obtain possession by means of both the body and the mind, and not by these separately. When, however, we say that we obtain possession by the body and the mind, this should not be understood to mean that where anyone desires to take possession of land he must walk around every field, as it will be sufficient for him to enter upon any part of the land, as long as it is his intention to take possession of it all, as far as its boundaries extend. 2No one can obtain possession of property which is uncertain; as, for instance, if you have the intention and desire to possess everything that Titius has. 3Neratius and Proculus think that we cannot acquire possession solely by intention, if natural possession does not come first. Therefore, if I know that there is a treasure on my land, I immediately possess it, as soon as I have the intention of doing so; because the intention supplies what is lacking in natural possession. Again, the opinion of Brutus and Manilius, who hold that anyone who has had possession of land for a long time has also had possession of any treasure to be found there, even though he was ignorant of its existence, is not correct. For he who does not know that there is any treasure there does not possess it, although he may have possession of the land; and, if he was aware of its presence, he cannot acquire it by long possession, because he knows that it is the property of someone else. Several authorities hold that the opinion of Sabinus is the better one; namely, that he who knows that there is a treasure on his land does not gain possession of it unless it has been removed from its place, because it is not in our custody. I concur in this opinion. 4We can hold possession of the same thing by several different titles; for example, certain authorities think that he who obtains property by usucaption does so not only as a purchaser, but as the owner. For if I am the heir of him who has possession as a purchaser I possess the same property, but as purchaser and as heir; for while ownership can only be established by a single title, this is not the case with possession. 5On the other hand, several persons cannot have possession of the same thing without division; for, indeed, it is contrary to nature that while I hold something you should also be considered to hold it. Sabinus, however, says that he who gives property held by a precarious title possesses it himself, as well as he who received it with the risk. Trebatius, also, approves this opinion, for he thinks that one person can have possession justly, and another unjustly, but that both of them cannot possess it either unjustly or justly. Labeo contradicts him, since, in the case of complete possession, it does not make much difference whether anyone has possession justly or unjustly. This is correct, for the same possession cannot be held by two persons, any more than you can be considered to stand on the very place on which I am standing, or to sit exactly where I am seated. 6When possession is lost, the intention of the party in possession must be considered. Therefore, although you may be on a tract of land, still, if you do not intend to retain it, you will immediately lose possession. Hence, possession can be lost by the intention alone, although it cannot be acquired in this way. 7If, however, you have possession solely by intention, even though another may be on the land, you will still have possession of the same. 8If anyone should give notice that a house is invaded-by robbers, and the owner, being overcome with fear, is unwilling to approach it, it is established that he loses possession of the house. But if a slave or a tenant, through whose agency I actually possess property, should either die, or depart, I will retain possession by intention. 9If I deliver an article to another, I lose possession of the same; for it has been decided that we hold possession until we voluntarily relinquish it, or are deprived of it by force. 10If a slave, of whom I am in possession, asserts that he is free, as Spartacus did, and is ready to maintain his.freedom in court, he will not be considered to be in possession of the master whom he is preparing to oppose. This, however, is only correct when he has remained for a long time at liberty; otherwise, if, from his condition as a slave, he demands his freedom, and petitions for a judicial decision on this point, he, nevertheless, remains under my control, and I hold possession of him by intention, until he has been pronounced to be free. 11We possess by intention the places to which we resort in summer and in winter, although we leave them at certain times. 12Moreover, we can have possession by intention, and also corporeally, by means of another, as we have stated in the case of a tenant and a slave. The fact that we possess certain property without being aware of it (as is the case where slaves obtain peculium), should not present any difficulty, for we are held to possess it by both the intention and the actual agency of the slaves. 13Nerva, the son, thinks that we can possess movable property, with the exception of slaves, as long as it remains in our charge; that is to say, as long as we can obtain natural possession of it, if we wished to do so. For if a flock should be lost, or a vase should fall in such a way that it cannot be found, it immediately ceases to be in our possession, although no one else can obtain possession of it; but the case is different where anything cannot be found which is in my charge, because it still remains in the neighborhood, and diligent search will discover it. 14Likewise, wild animals which we shut up in enclosures, and fish which we throw into ponds, are in our possession. But fish which are in a lake, or wild animals that wander in woods enclosed by hedges, are not in our possession, as they are left to their natural freedom; for otherwise, if anyone purchased the woods, he would be considered to have possession of all the animals therein, which is false. 15Moreover, we have possession of birds which we have shut up or tamed, and subjected to our control. 16Certain authorities very properly hold that pigeons, which fly away from our buildings, as well as bees which leave our hives, and have the habit of returning, are possessed by us. 17Labeo and Nerva, the son, have given it as their opinion that I cease to possess any place which a river or the sea has overflowed. 18If you appropriate any property which has been deposited with you, with the intention of stealing it, I cease to have possession of the same. If, however, you do not move it from its place, and have the intention of denying that it was deposited with you, several ancient authorities, and among them Sabinus and Cassius, very properly hold that I still retain possession, for the reason that a theft cannot be committed without handling the article, nor can theft be committed by mere intention. 19The rule that no one can himself change his title to the possession of property has been established by the ancient authorities. 20If, however, he who deposited an article with me, or lent it to me, should sell or give me the same thing, I will not be considered to have changed the title by which I hold possession, since I did not have possession. 21There are as many kinds of possession as there are ways of acquiring property which does not belong to us; as, for example, by purchase, by donation, by legacy, by dowry, as an heir, by surrender as reparation for damage committed, by occupancy, as in the case where we obtain property from the land or the sea, or from the enemy, or which we ourselves create. And, in conclusion, there is but one genus of possession, but the species are infinite in number. 22Possession may be divided into two kinds, for it is acquired either in good, or in bad faith. 23The opinion of Quintus Mucius, who included among the different kinds of possession that given by order of a magistrate, for the purpose of preserving the property, or where we obtain possession because security against threatened injury is not furnished, is perfectly ridiculous. For where anyone places a creditor in possession for the purpose of preserving property, or where this is done because security has not been furnished against threatened injury, or in the name of an unborn child, he does not really grant possession, but merely the custody and supervision of the property. Hence, when a neighbor does not give security against threatened injury, and we are placed in charge, and this condition continues for a long time, the Prætor, upon proper cause being shown, will permit us to obtain actual possession of the property.

4 Ulpianus, On the Edict, Book LXVII. A father immediately possesses whatever his son acquires as a part of his peculium, although he may not be aware that he is under his control. Moreover, the same rule should be adopted even if the son is in possession of another as a slave.

5 Paulus, On the Edict, Book LXIII. If I owe you Stichus under the terms of a stipulation, and I do not deliver him, and you obtain possession of him in some other way, you are a depredator. Likewise, if I should sell you any property and do not deliver it, and you obtain possession of the same without my consent, you will not do so as a purchaser, but as a depredator.

6 Ulpianus, On the Edict, Book LXX. We say that he holds anything clandestinely who takes possession of it by stealth, suspecting that the other party, not knowing what he has done, may raise a controversy, and fearing that he will contend his right. He, however, who does not take possession secretly, but conceals himself, is in such a position that he is not considered to have clandestine possession. For not the manner in which he acquired possession, but the beginning of his acquiring it, should be taken into account, nor does anyone begin to acquire possession clandestinely who does so in good faith, with the knowledge or consent of him to whom the property belongs, or for any other good reason. Hence Pomponius says that he obtains clandestine possession who, fearing that some future controversy may arise, and the person of whom he is apprehensive being ignorant of the fact, takes possession by stealth. 1Labeo says that where a man goes to a market, leaving no one at home, and on his return from the market finds that someone has taken possession of his house, the latter is held to have obtained clandestine possession. Therefore, he who went to the market still retains possession, but if the trespasser should not admit the owner on his return, he will be considered to be in possession rather by force than clandestinely.

7 Paulus, On the Edict, Book LIV. If the owner is unwilling to return to the land because he fears the exertion of superior force, he will be considered to have lost possession. This was also stated by Neratius.

8 The Same, On the Edict, Book LXV. As possession cannot be acquired except by intention and a corporeal act, so in like manner, it cannot be lost, except in a case where the opposite of both of these things takes place.

9 Gaius, On the Edict, Book XXV. Generally speaking, we are considered to have possession when anyone as an agent, a host, or a friend, holds it in our name.

10 Ulpianus, On the Edict, Book LXIX. Where anyone leases property, and afterwards claims it by a precarious title, he is considered to have abandoned his lease. If he claims it at first by a precarious title, and afterwards leases it, he is considered to hold possession under the lease; for whatever is done last should rather be taken into consideration. Pomponius, also, is of this opinion. 1Pomponius discusses a very nice question; namely, whether a man who leases land, but claims it by a precarious title, does so, not for the purpose of possessing it, but merely to remain in possession; for there is a great difference, as it is one thing to possess, but quite another to be in possession. Persons placed in possession for the purpose of preserving the property, as legatees or neighbors, on account of threatened injury, do not possess the property but are in possession of the same for the purpose of caring for it. When this is done both of the above ways are merged into one. 2Where anyone leases land, and asks to be placed in possession by a precarious title, if he leased it for one sesterce there is no doubt that he holds it at will, as a lease for only that sum is void. If, however, he leases it for a fair rent, it must then be ascertained what was done first.

11 Paulus, On the Edict, Book LXV. He possesses justly who does so by the authority of the Prætor.

12 Ulpianus, On the Edict, Book LXX. He who has the usufruct of property is held to possess it naturally. 1Ownership has nothing in common with possession, and therefore an interdict Uti possidetis is not refused to one who has begun proceedings to recover the property, for he who does so is not held to have relinquished possession.

13 The Same, On the Edict, Book LXXII. Pomponius relates that stones were sunk in the Tiber by a shipwreck and were afterwards recovered; and he asks whether the ownership remained unchanged during the time that they were in the river. I think that the ownership, but not the possession, was retained. This instance is not similar to that of a fugitive slave, for the slave is considered to be possessed by us, in order to prevent him from depriving us of possession; but the case of the stones is different. 1Where anyone makes use of the agency of another, he should do so with the liabilities and defects attaching to it. Hence, with reference to the time during which the vendor has had possession of the property, we also take into consideration the questions of violence, secrecy, and precarious title. 2Moreover, where anyone returns a slave to the vendor, the question arises whether the latter can profit by the time that the slave was in possession of the purchaser. Some authorities think that he cannot, for the reason that the return of the slave annuls the sale; others hold that the purchaser can profit by the time of possession by the vendor, and the vendor by that of the purchaser. This opinion, I think, should be adopted. 3If a freeman, or a slave belonging to another who is serving in good faith, purchases property, and a third party acquires possession of the same, neither the alleged slave, when he becomes free, nor the real owner can profit by the time that the property has been in the hands of a bona fide possessor. 4Where an heir did not possess in the first place, the question arose whether he cah profit by the possession of the testator. And, indeed, possession is interrupted between the parties to the sale, but many authorities do not hold the same opinion with reference to heirs, as the right of succession is much more extensive than that of purchase. It is, however, more in accordance with a liberal interpretation of law that the same rule should be adopted concerning heirs which applies to purchasers. 5Not only does the possession of the testator, which he had at the time of his death, benefit the heir, but also that which he had at any time whatsoever has this effect. 6With reference to dowry also, if property has been either given or received as such, the time of possession will profit either the husband or the wife, as the case may be. 7Where anyone has transferred property by a precarious title, the question arises whether he can profit by the time during which it was in possession of the person to whom it was transferred. I think that he who transfers it by a precarious title cannot profit by the time of possession, as long as the title continues to be precarious; but if he again acquires possession, and the precarious title is extinguished, he can profit by the possession during the time when the property was held by a precarious title. 8In a certain case, it was asked if a manumitted slave has possession of property forming part of his peculium (his peculium not having been given to him) and his master desires to profit by the time it was held by the freedman, possession of the property having been surrendered, whether he can do so. It was decided that he should not be granted the benefit of the time of possession, because his conduct was clandestine and dishonest. 9Where property has been restored to me by order of court, it has been decided that I am entitled to the benefit of the time during which it was held by my opponent. 10It must, however, be remembered that a legatee is entitled to the benefit of the time when the property was in the hands of the testator. But let us see whether he will be benefited by the time that the property was in the possession of the heir. I think that, whether the legacy was bequeathed absolutely or conditionally, it should be held that the legatee can profit by the time that it was in the possession of the heir, before the condition was fulfilled, or the property delivered. The time that it was in the possession of the testator will always profit the legatee, if the legacy or the trust is genuine. 11Moreover, he to whom property is donated has a right to profit by the time it was possessed by the person who made the donation. 12Times of possession are applicable to those who themselves have possession of what is their own; but no one will be entitled to this privilege unless he himself has been in possession. 13Again, time of occupancy will be of no advantage where the possession is defective; possession, however, which is not defective, causes no injury.

14 Paulus, On the Edict, Book LXVIII. If my slave, or my son who is under my control, should make a sale, the benefit of the time that he was in my power will be granted; that is, provided he acted with my consent, or had the free administration of his peculium. 1Where anything is sold by a guardian or a curator, the purchaser will be entitled to the benefit of the time during which the ward or the insane person possessed the property.

15 Gaius, On the Provincial Edict, Book XXVI. We are understood to cease to possess property which has been stolen from us, just as if we had been deprived of it by force. But if someone who is under our control should steal anything from us, we will not lose possession of it, as long as it remains in his hands; for the reason that possession is acquired for us by means of persons of this kind. This is why we are considered to possess a fugitive slave; for, as we cannot be deprived of the possession of other things which he has, so, in like manner, we cannot be deprived of him.

16 Ulpianus, On the Edict, Book XXXVII. Anything which a wife gives to her husband, or a husband to his wife, is held by him or her as its possessor.

17 The Same, On the Edict, Book LXXVI. If anyone is forcibly dispossessed he should be considered to have remained in possession, as he has the power to recover it by means of an interdict on the ground of violence. 1The difference between ownership and possession is that ownership continues to exist, even against the wishes of the owner; but possession is lost as soon as anyone decides that he is unwilling to keep it. Therefore, if a man delivers possession with the intention that the property shall afterwards be returned to him, he ceases to possess it.

18 Celsus, Digest, Book XXIII. What I possess in my own name I can possess in that of another. For I do not change the title to my possession when I hold it through another, but I cease to possess the property, and I render him possessor by my own act. It is not the same thing to possess personally and to possess in the name of another; for he possesses in whose name possession is held. A representative lends his agency to the possession of another. 1If you deliver property to an insane person whom you think is in the enjoyment of his faculties, for the reason that, while in your presence he appeared to be quiet, and have his mind unclouded, although he will not obtain possession, you will “lose it. For it is sufficient to have relinquished possession, even if you did not legally transfer it, as it would be absurd to say that anyone did not intend to relinquish it unless he legally transferred it; and, indeed, it is because he thinks he transferred it that he manifests his intention to give possession. 2If I order the vendor, of whom I have made a purchase, to deliver the article at my house, it is certain that I possess the property, even if no one has yet touched it. Or, if the vendor should show me from my tower a neighboring tract of land of which he says that he delivers me the possession, I begin to possess the said land, and just as if I had placed my foot within the boundaries of the same. 3If, when I am on one side of my land, some other person enters upon the opposite side, with the intention of clandestinely obtaining possession, I am not considered to have immediately lost possession, as I can easily eject him from the premises, as soon as I am informed of his act. 4Again, if an army enters upon land with great violence, it will only gain possession of that portion which it occupied.

19 Marcellus, Digest, Book XVII. A man who purchased a tract of land from another in good faith afterwards leased the same land from the owner. I ask whether he ceased to possess it or not. I answered that he immediately ceased to do so. 1When it is stated by the ancients that no one could himself change the title of his possession, it is probable that they had in mind one who, being in possession of property bodily, as well as by intention, determined to possess it under some other title; and not one who, having relinquished possession under his first title, desired to obtain possession a second time, under another.

20 The Same, Digest, Book XIX. Where anyone who has lent an article to be used, sells it, and directs it to be delivered to the purchaser, and the borrower does not deliver it; in some instances the owner will be held to have lost possession, and in others he will not. For the owner will only lose possession when the article which has been lent is not returned when he demands it. But what if there was a just and reasonable cause for returning it, and not merely that the borrower desired to retain possession of the property?

21 Javolenus, On Cassius, Book VII. We can sometimes deliver to another the possession of property which we ourselves do not hold; as, for instance, when he who possesses an article as heir, and, before becoming the owner of the same, claims it under a precarious title from the real heir. 1Property which has been thrown overboard in a shipwreck cannot be acquired by usucaption, since it has not been abandoned, but merely lost. 2I think that the same rule of law applies to property which has been thrown into the sea to lighten the ship, as that cannot be considered as abandoned which has been temporarily relinquished on account of safety. 3When anyone claims the property of another by a precarious title, and leases it from him, possession of the same will revert to the owner.

22 The Same, On Cassius, Book XIII. He who obtains possession in such a way that he cannot retain it is not considered to have acquired it at all.

23 The Same, Epistles, Book I. When we are appointed heirs, and the estate has been accepted, all rights to it pass to us; but possession does not belong to us until it is taken naturally. 1So far as those who fall into the hands of the enemy are concerned, the law relating to their retention of the rights of property is a peculiar one, for they lose corporeal possession of the same, nor can they be held to possess anything when they themselves are possessed by others; therefore it follows that, when they return, a new acquisition of possession is required, even if no one had possession of their property in the meantime. 2I also ask, if I chain a freeman in order to possess him, whether I possess through him everything which he possesses. The answer is that if you claim a freeman, I do not think that you possess him; and, as this is the case, there is much less reason that his property should be possessed by you; nor does the nature of things admit that we can possess anything by the agency of one whom I do not legally have in my power.

24 The Same, Epistles, Book XIV. Anything that your slave obtains possession of by violence, without your knowledge, you do not possess, because he who is under your control cannot acquire corporeal possession if you are not aware of it; but he can acquire legal possession, as, for instance, he possesses what comes into his hands as part of his peculium. For when a master is said to possess by his slave, there is an excellent reason for this, because what is held by the slave actually, and for a good reason belongs to his peculium, and the peculium which a slave cannot possess as a citizen, but holds naturally, his master is considered to possess. Anything, however, which the slave acquires by illegal acts, is not possessed by the master, because it is not included in the peculium of the slave.

25 Pomponius, On Quintus Mucius, Book XXV. We cease to possess anything which has been in our possession, and which has been so completely lost that we do not know where it is. 1We possess through the medium of our farmers, our tenants, and our slaves. If they die, become insane, or are hired by others, we are understood to still retain possession of them. There is no difference whatever, in this respect, between our tenant and our slave by whose agency we retain possession of property. 2When we only possess property by intention, the question arises whether we continue to do so until another actually enters upon it, so that his actual possession becomes preferable; or, indeed (and this is the better opinion) whether we possess the same until, upon our return, someone prevents us from entering; or whether we cease to possess by intention, because we suspect that we will be driven away by the person who has taken possession. This seems to be the more reasonable opinion.

26 The Same, On Quintus Mucius, Book XXVI. A definite portion of a tract of land can be possessed and acquired by long possession, and also a certain portion which is. undivided and which is obtained by purchase, by donation, or by any other title whatsoever, can also be acquired in this manner. A portion, however, which is not specifically designated can neither be delivered nor received; as, for instance, if I transfer to you “all of such-and-such a tract of land that I am entitled to;” for anyone who is ignorant of the facts can neither transfer nor receive something which is uncertain.

27 Paulus, Epistles, Book V. If a person who has become insane retains possession of a forest, he does not lose possession of it as long as he remains in that condition, because a lunatic cannot lose the intention of possessing.

28 Tertullianus, Questions, Book I. If I possess property, and afterwards lease it, do I lose possession? It makes a great deal of difference as to what the intention of the testator was in this case. First, it is important to ascertain whether I know that I am in possession, or am ignorant of the fact; and whether I lease the property as my own, or as belonging to someone else, and, knowing it to be mine, whether I lease it with reference to the ownership, or merely to obtain possession. For if you are in possession of my property, and I purchase the possession of the same from you, or enter into a stipulation with reference thereto, both the purchase and the stipulation will be valid; and the result is that there will be both a precarious title and a lease, if there was an express intention of only leasing possession, or an intention of claiming it by a precarious title.

29 Ulpianus, On Sabinus, Book XXX. It has been decided that a ward can lose possession without the authority of his guardian, but he does not cease to possess the property by intention, as he does by the performance of a corporeal act, for he can lose what depends upon an act. The case is different where he desires to lose possession by intention, for he cannot do so.

30 Paulus, On Sabinus, Book XV. When anyone possesses an entire house, he is not considered to possess the different articles which are contained in the building. 1We lose possession in several ways; as, for instance, if we bury a dead body in a place which we possess, for we cannot possess a place which is religious or sacred, even if we despise religion, and continue to hold it as private property. The same rule applies to a freeman who is held as a slave. 2Labeo says that the owner of a building loses possession against his will when the Prætor orders possession of it to be taken, where security against threatened injury is not furnished. 3Likewise, we do not cease to possess land which is occupied by the sea, or by a river, or if anyone who has possession of property comes under the control of another. 4Again, we cease to possess property which is movable, in several ways, as where we are unwilling to possess it, or where for example, we manumit a slave. Moreover, if I possess something and its form is changed, as, for instance, a garment is made out of wool, the same rule will apply. 5Anything that I possess by a tenant, my heir cannot possess, unless he actually obtains possession of it, for we can retain, but we cannot acquire possession by intention alone. What I possess as a purchaser, however, my heir can obtain by usucaption through the agency of a tenant. 6If I lend you anything, and you lend it to Titius, and he thinks that it is yours, I will still continue to possess it. The same rule will apply if my tenant sublets my land, or he with whom I have deposited property should again deposit with another; and the same rule must be observed, even if this is done by several persons.

31 Pomponius, On Sabinus, Book XXXII. If a tenant leaves the land without the intention of relinquishing possession, and returns, it is held that the same lessor holds possession.

32 Paulus, On Sabinus, Book XV. Although a ward is not bound without the authority of his guardian, we can still retain possession by him. 1If a lessee sells the property, leases it from the purchaser, and pays rent to both lessors, the first one who rented it legally retains possession through the lessee. 2An infant can lawfully possess anything if he obtains it with the consent of his guardian, for the want of judgment of the infant is supplied by the authority of the guardian. This opinion has been adopted on account of its convenience, for otherwise, an infant who receives possession of property would not know what he was doing. A ward can, nevertheless, obtain possession without the authority of his guardian, and an infant can possess peculium through the medium of a slave.

33 Pomponius, On Sabinus, Book XXXII. Even if the vendor of a tract of land should direct someone to place a purchaser in full possession of the same, the purchaser himself cannot legally acquire possession before this is done. Likewise, if a friend of the vendor, not being aware that the latter is dead, should place the purchaser in possession without being prevented from doing so by the heirs, possession will legally be delivered. But if he did this, knowing that the owner was dead, or if he was aware that the heirs were unwilling that it should be done, the contrary rule will apply.

34 Ulpianus, Disputations, Book VII. If you place me in full possession of the Cornelian Estate, and I think that I am placed in possession of the Sempronian estate, but enter upon the Cornelian estate, I do not acquire possession unless we are only mistaken in the name, and agree with reference to the property. Since, however, we agree with reference to the property, a doubt may arise whether you do not lose possession; because Celsus and Marcellus say that we can lose and change possession merely by intention. And if possession can be acquired by intention, can it also be acquired in this instance? I do not think that a person who is mistaken can acquire it. Therefore, he who only relinquishes possession, as it were conditionally, does not lose it. 1If, however, you deliver possession, not to me but to my agent, it should be considered whether possession will be acquired by me if I make a mistake, but my agent does not. As it is held that it can be acquired by a person who is ignorant of the facts, it can also be acquired by one who is mistaken. But if my agent is mistaken, and I am not, the better opinion is that I will acquire possession. 2My slave also acquires possession for me without my knowledge. For even a slave belonging to another, as Vitellius says, can acquire possession for me, if he takes the property in my name, whether he is possessed by me or by no one at all. This also should be admitted.

35 The Same, On All Tribunals, Book V. A controversy for possession is terminated as soon as the judge decides which party is in possession. This is done in such a way that he who loses possession can take the position of plaintiff, and then bring an action against the owner.

36 Julianus, Digest, Book XIII. He who transfers a tract of land to a creditor, by way of pledge, is understood to retain possession of the same. But even if he should claim it by a precarious title, he can also acquire a good one by lapse of time; for, as possession by the creditor does not interfere with prescription, there is less reason that the claim of the debtor under a precarious title should present no obstacle, since he has much better right who claims property by a precarious title and is in possession, than he who has no possession at all.

37 Marcianus, On the Hypothecary Formula. When land is given in pledge, and possession is delivered, and the property has then been leased by the creditor, and it is agreed that he who encumbered it shall be considered as a tenant in the country, and as a lessee in the city, the creditor is considered to possess the property through the debtor who has leased it.

38 Julianus, Digest, Book XLIV. A master who writes to his absent slave to remain at liberty has not the intention of immediately relinquishing possession of the slave; but his intention is rather deferred until the time when the slave will be informed of the fact. 1When anyone delivers possession of land in such a way that he does not intend it to be given us, unless the land belongs to him, he is not considered to have delivered possession if the land is the property of another. It should, moreover, be understood that possession can be delivered conditionally, just as property is transferred under a condition and does not pass to the person who receives it unless the condition is complied with. 2Where a man who sold a slave to Titius delivers him to his heir, the latter can obtain possession of the estate by means of the slave; not for the reason that the slave came into his hands from the estate, but because he is entitled to an action on purchase. For if a slave is due to a testator in accordance with the terms of a stipulation, or of a will, and the heir receives him, he will not be forbidden to obtain possession of the property of the estate by means of the slave.

39 The Same, On Minicius, Book II. I think that it makes a difference with what intention property is deposited in the hands of an arbiter; for if this is done for the purpose of relinquishing possession, and is clearly proved, the possession of the arbiter will be of no benefit to the parties for the purpose of usucaption. If, however, the property was deposited for safe-keeping, it is settled that he who gains the case can profit by the possession, in order to acquire the property by prescription.

40 Africanus, Questions, Book VII. If your slave ejects you from land, which I gave you in pledge while it was in my possession, it is held that you continue to be in possession of the same, as you still retain possession by this same slave. 1If the tenant by whom the owner holds possession should die, it has been decided for the sake of public convenience that possession is retained and continued through the agency of the tenant. It should not be held that possession is immediately interrupted by the death of the latter, for this is not the case unless the owner neglects to take possession. A different opinion must be held, if the tenant voluntarily relinquishes possession. This, however, is only true where a stranger has not, in the meantime, been in possession, but it always remains as part of the estate of the tenant. 2I purchased your slave from Titius in good faith, and possessed him after he had been delivered, and then when I ascertained that he was yours, I concealed him, to prevent you from claiming him. It is held that, on his account, I should not be considered to have possessed him clandestinely during this time. For, on the other hand, if I should knowingly purchase your slave from someone who is not his owner, and should then retain clandestine possession of him, even after I notified you, I would not, for that reason, cease to have clandestine possession of the slave. 3If I clandestinely remove my own slave from a bona fide purchaser, it has been decided that I ought not to be considered to have clandestine possession of him, because the owner does not hold him under a precarious title, nor under a lease of his own property; and there are no other methods of acquiring clandestine possession.

41 Paulus, Institutes, Book I. Anyone who enters upon a tract of land as a friend, by the right of familiarity, is not considered to possess it, because he did not enter upon it with the intention of doing so, although he may have actual possession of the land.

42 Ulpianus, Rules, Book IV. Where a slave owned in common is possessed by one of the joint-owners in the name of all, he is understood to be possessed by all. 1Where an agent purchases property by the direction of his principal, he immediately acquires possession of it for him. This is not true if he purchases it on his own responsibility, unless his principal ratifies the sale.

43 Marcianus, Rules, Book III. Julianus says that if anyone buys a tract of land, a small part of which he knows to belong to another, and he was aware that the said small part has been divided; he can acquire the remainder of the land by prescription. If, however, the said part was undivided, he can also acquire the land by prescription, although he may not know where the part in question was situated; because what he thought belonged to the vendor passes by prescription to the purchaser, without any damage resulting. 1Pomponius, also, in the Fifth Book of Various Passages, says that if the purchaser knows, or thinks that the usufruct of the property belongs to another, he can still obtain the latter by long-continued possession. 2The same rule applies, as he says, if I purchase property which I know has been pledged.

44 Papinianus, Questions, Book XXIII. Where a man, about to start upon a long journey, buried his money in the ground for safe-keeping, and, having returned, could not remember the place where the treasure was concealed, the question arose whether he had ceased to possess it, or if, afterwards, he should find the place, whether he would immediately begin to acquire possession. I gave it as my opinion that, as the money was not said to have been hidden for any other purpose than safe-keeping, he who concealed it should not be considered to have been deprived of the right of possession; nor did the failure of his memory prejudice that right, as no one else had appropriated the money. On the other hand, it might be held that we lose possession of our slaves during the time when we no longer see them. Nor does it make any difference whether I hide the money on my own premises, or on those of another; for if anyone should hide his property on my premises, I would not obtain possession of it unless I did so where it was above ground. Hence, the fact that the land belongs to another does not deprive me of my own possession, as there is no difference whether I have possession above, or under ground. 1The question arises why the possession of property belonging to his peculium is acquired by a slave for his master, without the knowledge of the latter. I said that this rule had been adopted on the ground of public convenience, to prevent masters from inquiring constantly about property belonging to the peculium of their slaves, and the reason why it was found there; so that, in this instance, it could not be held that possession was acquired by intention alone. For if any property is obtained which does not form part of the peculium, the knowledge of the master is necessary, but possession is acquired by the mere act of the slave. 2These matters having been explained, the question of losing possession comes up for discussion; and I hold that it makes a great deal of difference whether we hold possession by ourselves or through the agency of others. For, so far as the possession which we hold by our own act is concerned, it can be lost either by intention, or by our act, provided we relinquish it with the expectation of no longer holding it; but possession to property which is acquired by the act of a slave or a tenant is not lost, unless another has appropriated the property; and this can also occur even without our knowledge. There is still another distinction applicable to loss of possession, for the possession of winter and summer resorts is retained by mere intention,

45 The Same, Definitions, Book II. Although we do not leave a slave or a tenant there when we depart.

46 The Same, Questions, Book XXIII. Even if another may have been entered upon property with the intention of taking possession of the same, the former possessor is held to retain possession, as long as he is ignorant that it has been taken by another. For, as the bond of an obligation is released in the same way that it has been made, so, where possession is held by intention alone, it should not be taken away without anyone’s knowledge.

47 The Same, Questions, Book XXVI. If you decide not to return movable property which has been deposited with you, or of which you have been given possession as a loan, it has been held that the other party will lose possession immediately, even if he is not aware of your intention. The reason for this is, that where the care of movable property is neglected, or abandoned, even though no one else appropriates it, the former possession is usually prejudiced. This was stated by Nerva, the son, in his Books on Usucaption. He also says that the case is different, if proper care was not used, where a slave had been lent; for possession of him only will continue as long as no one else seizes him, that is to say, because a slave can retain possession for his master if he has the intention of returning to him; and we can likewise obtain possession of other property by his agency. Therefore, possession of such objects as are destitute of reason, or life, is immediately lost, but that of slaves is retained, if they have the intention of returning.

48 The Same, Opinions, Book X. A certain man donated a tract of land together with slaves attached to the same, and stated in a letter that he delivered possession of the property. If one of the slaves, who was donated, should come into the hands of him who received the house, and be afterwards sent back to the land, it has been decided that possession of the land and of the other slaves has been acquired by means of those above mentioned.

49 The Same, Definitions, Book II. Possession can be acquired by me through a slave in whom I have the usufruct if this is done by means of my property, or the services of the slave; because the latter is naturally held by the usufructuary, and possession borrows many things from the law. 1Those who are under the control of others can hold property belonging to their peculium, but they cannot possess it; for the reason that possession is not only a matter of fact, but is also one of law. 2Although possession through an agent can be acquired by a principal without his knowledge, usucaption can only benefit one who knows that possession has been taken; still, an action for eviction is not granted to the principal against the vendor without the consent of the agent, but he can be compelled to grant it by an action on mandate.

50 Hermogenianus, Epitomes of Law, Book V. Neither possession nor ownership, nor anything else whatsoever, can be acquired through the use of my property by one whom I have been induced to erroneously consider my son under my control. 1Possession can be acquired for us by a runaway slave, if he has not been taken possession of by another, and does not think that he is free.

51 Javolenus, On the Last Works of Labeo, Book V. Labeo says that we can acquire possession of certain things by intention; as, for instance, if I purchase a pile of wood, and the vendor directs me to remove it, it will be considered to have been transferred to me, as soon as I place a guard over it. The same rule applies to a sale of wine where all the jars are together. But, he says, let us see whether this is an actual delivery, because it makes no difference whether I order the custody of the property to be delivered to me, or to someone else. I think that the question in this case is, that even if the pile of wood or the jars have not been actually handled, they should, nevertheless, be considered to have been delivered. I do not see that it makes any difference whether I, myself, take charge of the pile of wood, or someone else does so by my direction. In both instances, whether or not possession was obtained must be determined by the character of the intention.

52 Venuleius, Interdicts, Book I. The titles to the possession and usufruct of property must not be confused, just as possession and ownership should not be intermingled. For possession is prevented if another has the use and enjoyment, nor can the usufruct of one person be computed if another is in possession of the property. 1It is clear that when anyone is forbidden to build, he is also forbidden to retain possession. 2One method of placing a person in possession of property is to prohibit any violence being manifested toward him when he enters upon it. For the judge orders the adverse party immediately to surrender and relinquish possession, which is much more decisive than to order him merely to restore it.

53 The Same, Interdicts, Book V. Possession which is defective is usually only advantageous as against strangers.