De vi et de vi armata
(Concerning the interdict against violence and armed force.)
1 Ulpianus libro sexagensimo nono ad edictum. Praetor ait: ‘Unde tu illum vi deiecisti aut familia tua deiecit, de eo quaeque ille tunc ibi habuit tantummodo intra annum, post annum de eo, quod ad eum qui vi deiecit pervenerit, iudicium dabo’. 1Hoc interdictum proponitur ei, qui vi deiectus est: etenim fuit aequissimum vi deiecto subvenire: propter quod ad reciperandam possessionem interdictum hoc proponitur. 2Ne quid autem per vim admittatur, etiam legibus Iuliis prospicitur publicorum et privatorum nec non et constitutionibus principum. 3Hoc interdictum non ad omnem vim pertinet, verum ad eos, qui de possessione deiciuntur. ad solam autem atrocem vim pertinet hoc interdictum, et ad eos tantum, qui de solo deiciuntur, ut puta de fundo sive aedificio: ad alium autem non pertinet. 4Et si quis de area deiectus sit, sine dubio interdicto locus est: et generaliter ad omnes hoc pertinet interdictum, qui de re solo cohaerenti deiciuntur: qualisqualis enim fuerit locus, unde quis vi deiectus est, interdicto locus erit. 5Proinde et si superficiaria insula fuerit, qua quis deiectus est, apparet interdicto fore locum. 6Illud utique in dubium non venit interdictum hoc ad res mobiles non pertinere: nam ex causa furti vel vi bonorum raptorum actio competit: potest et ad exhibendum agi. plane si quae res sint in fundo vel in aedibus, unde quis deiectus est, etiam earum nomine interdictum competere non est ambigendum. 7Si quis de nave vi deiectus est, hoc interdicto locus non est, argumento eius, qui de vehiculo detractus est, quem nemo dixit interdicto hoc uti posse. 8Plane si quis de ligneis aedibus deiectus fuerit, nemo ambigit interdicto locum fore, quia qualequale sit quod solo cohaereat, inde qui vi deiectus est habet interdictum. 9Deicitur is qui possidet, sive civiliter sive naturaliter possideat: nam et naturalis possessio ad hoc interdictum pertinet. 10Denique et si maritus uxori donavit eaque deiecta sit, poterit interdicto uti: non tamen si colonus. 11Ait praetor: ‘deiecisti aut familia deiecit’. merito familiae mentio habita: nam cum ‘deiecisti’ verbum refertur ad personam eius qui deiecit nec pertineat ad eum, cuius familia deiecit (nec enim ego videor deiecisse, si familia mea deiecerit), consequens fuit addere ‘aut familia tua deiecit’. 12Deiecisse autem etiam is videtur, qui mandavit vel iussit, ut aliquis deiceretur: parvi enim referre visum est, suis manibus quis deiciat an vero per alium: quare et si familia mea ex voluntate mea deiecerit, ego videor deiecisse. 13Quotiens verus procurator deiecerit, cum utrolibet eorum, id est sive domino sive procuratore, agi posse Sabinus ait et alterius nomine alteri eximi, sic tamen, si ab altero eorum litis aestimatio fuerit praestita (non enim excusatus est, qui iussu alicuius deiecit, non magis quam si iussu alicuius occidit): cum autem falsus est procurator, cum ipso tantum procuratore interdici debere. Sabini sententia vera est. 14Sed et si quod alius deiecit, ratum habuero, sunt qui putent secundum Sabinum et Cassium, qui ratihabitionem mandato comparant, me videri deiecisse interdictoque isto teneri, et hoc verum est: rectius enim dicitur in maleficio ratihabitionem mandato comparari. 15Quod igitur additur ‘aut familia tua deiecit’, merito scriptum est in eum casum, in quem familia mea vi deiecit. ceterum si iussit, ipse deiecit, nec gravari debet dominus qui non iussit, si servorum suorum factum praestaret, etsi non iussu eius deiecerunt: nam non gravabitur hoc nomine, quippe cum aut pervenit ad eum aliquid et restitueret, aut non pervenit et ipsos servos maleficii causa noxae dedendo indemnis erit: quod enim noxae dedere compellitur, in damno non debet reputare, cum servus hoc possit domini deteriorem condicionem facere. 16Familiae autem appellatio servos continet: 17Sed quaeritur, quem numerum servorum contineat, utrum plurium an vero et duum vel trium. sed verius est in hoc interdicto, etiamsi unus servus vi deiecerit, familiam videri deiecisse. 18Familiae appellatione et eos, quos loco servorum habemus, contineri oportere dicendum est. 19Si quis tamen neget se servum vel familiam defendere, cogendus est pati hoc interdictum, ad hoc scilicet, ut quod ad eum pervenit restituat. 20Si filius familias vel mercennarius vi deiecerit, utile interdictum competit. 21Si adversus eum, qui in libertatem ex servitute vel contra petitur, post inchoatum liberale iudicium utar interdicto et liber iudicatus fuerit et apparuerit ignorante eo a servis eius vi me deiectum, in possessionem restituar. 22Quod servus vel procurator vel colonus tenent, dominus videtur possidere, et ideo his deiectis ipse deici de possessione videtur, etiamsi ignoret eos deiectos, per quos possidebat. et si quis igitur alius, per quem possidebam, deiectus fuerit, mihi competere interdictum nemini dubium est. 23Interdictum autem hoc nulli competit nisi ei, qui tunc cum deiceretur possidebat, nec alius deici visus est quam qui possidet. 24Sive autem corpore sive animo possidens quis deiectus est, palam est eum vi deiectum videri. idcircoque si quis de agro suo vel de domo processisset nemine suorum relicto, mox revertens prohibitus sit ingredi vel ipsum praedium, vel si quis eum in medio itinere detinuerit et ipse possederit, vi deiectus videtur: ademisti enim ei possessionem, quam animo retinebat, etsi non corpore. 25Quod volgo dicitur aestivorum hibernorumque saltuum nos possessiones animo retinere, id exempli causa didici Proculum dicere: nam ex omnibus praediis, ex quibus non hac mente recedemus, ut omississe possessionem vellemus, idem est. 26Eum, qui neque animo neque corpore possidebat, ingredi autem et incipere possidere prohibeatur, non videri deiectum verius est: deicitur enim qui amittit possessionem, non qui non accipitur. 27Vim vi repellere licere Cassius scribit idque ius natura comparatur: apparet autem, inquit, ex eo arma armis repellere licere. 28Vi possidere eum definiendum est, qui expulso vetere possessore adquisitam per vim possessionem optinet aut qui in hoc ipsum aptatus et praeparatus venit ut contra bonos mores auxilio, ne prohiberi possit ingrediens in possessionem, facit. sed qui per vim possessionem suam retinuerit, Labeo ait non vi possidere. 29Idem Labeo ait eum, qui metu turbae perterritus fugerit, vi videri deiectum. sed Pomponius ait vim sine corporali vi locum non habere, ergo etiam eum, qui fugatus est supervenientibus quibusdam, si illi vi occupaverunt possessionem, videri vi deiectum. 30Qui a me vi possidebat, si ab alio deiciatur, habet interdictum. 31Qui vi deiectus est, quidquid damni senserit ob hoc quod deiectus est, reciperare debet: pristina enim causa restitui debet, quam habiturus erat, si non fuisset deiectus. 32Si fundus, a quo vi expulsus sim, mihi restitutus esset, ceterae vero res, quae vi ablatae sunt, non restituantur, hic dicendum est interdictum nihilo minus tenere, quia verum est vi esse deiectum. plane si quis velit de possessione quidem rei soli per hoc interdictum experiri, de rebus vero mobilibus ad exhibendum actione, potest hoc suo arbitrio habere, et ita Iulianus scribit: idem scribit et si quis vi bonorum raptorum de huiusmodi rebus velit experiri. 33Quod autem ait praetor: ‘quaeque ibi habuit’, sic accipimus, ut omnes res contineantur, non solum quae propriae ipsius fuerunt, verum etiam si quae apud eum depositae vel ei commodatae vel pigneratae, quarumque usum vel usum fructum vel custodiam habuit, vel si quae ei locatae sunt: cum enim dicat praetor ‘habuit’, omnia haec habendi verbo continentur. 34Rectissime autem praetor addidit ‘tunc ibi habuit’. ‘tunc’ sic accipimus ‘cum deiceretur’: et ideo et si quid postea desiit illic esse, dicendum erit in interdictum venire. sic fit, ut, etiamsi homines vel pecora demortua sint post deiectionem, interdicto locus sit. 35Denique scribit Iulianus eum, qui vi deiecit ex eo praedio, in quo homines fuerant, propius esse, ut etiam sine culpa eius mortuis hominibus aestimationem eorum per interdictum restituere debeat, sicuti fur hominis etiam mortuo eo tenetur. huic consequens esse ait, ut villae quoque et aedium incendio consumptarum pretium restituere cogatur: ubi enim quis, inquit, deiecit, per eum stetisse videtur, quo minus restitueret. 36Idcirco constare ait eum, qui vi deiecit quique vi sine dolo malo desierit possidere, interdicto teneri. 37‘Ibi’ autem ait praetor, ut ne quis et quae illic non habuit, complectatur. 38Sane quod ait praetor ‘ibi’, quomodo accipimus? utrum in eo loco, unde quis vi deiectus est, an vero in omni possessione? et melius dicetur non ad angulum referendum vel locum, in quo fuerit, verum etiam ad omnem partem possessionis, qua quis caruit, cum deicitur. 39Annus in hoc interdicto utilis est. 40Ex die, quo quis deiectus est, fructuum ratio habetur, quamvis in ceteris interdictis ex quo edita sunt, non retro, computantur. idem est et in rebus mobilibus, quae ibi erant: nam et earum fructus computandi sunt, ex quo quis vi deiectus est. 41Non solum autem fructuum ratio in hoc interdicto habetur, verum ceterarum etiam utilitatium habenda est: nam Vivianus refert in hoc interdicto omnia, quaecumque habiturus vel adsecuturus erat is qui deiectus est, si vi deiectus non esset, restitui aut eorum litem a iudice aestimari debere eumque tantum consecuturum, quanti sua interesset se vi deiectum non esse. 42Ex interdicto unde vi etiam is qui non possidet restituere cogetur. 43Interdictum hoc quia atrocitatem facinoris in se habet, quaesitum est, an liberto in patronum vel liberis adversus parentes competit. et verius est nec liberto in patronum nec in parentes liberis dandum esse meliusque erit in factum actionem his competere. aliter atque si vi armata usus sit adversus libertum patronus vel adversus liberos parens: nam hic interdictum competit. 44Hoc interdictum et heredi et ceteris successoribus competit. 45Non alii autem, quam ei qui possidet, interdictum unde vi competere argumentum praebet, quod apud Vivianum relatum est, si quis me vi deiecerit, meos non deiecerit, non posse me hoc interdicto experiri, quia per eos retineo possessionem, qui deiecti non sunt. 46Idem Vivianus refert: servos quosdam vi depulit, alios retinuit et vinxit aut etiam eis imperavit: vi te deiectum intellegi: desisse enim possidere, cum servi ab alio possideantur. et quod in parte servorum dictum est, idem in omnibus dici ait, si forte nemo depulsus esset, sed possideri ab eo coepissent, qui ingressus in possessionem esset. 47Quid dicturi essemus, tractat, si aliquo possidente ego quoque ingressus sum in possessionem et non deiciam possessorem, sed vinctum opus facere cogam: quatenus res, inquit, esset? ego verius puto eum quoque deiectum videri, qui illic vinctus est. 48Ex causa huius interdicti in heredem et bonorum possessorem ceterosque successores in factum actio competit in id quod ad eos pervenit
1 Ulpianus, On the Edict, Book LXIX. The Prætor says: “If you or your slaves have forcibly deprived anyone of property which he had at that time, I will grant an action, only for a year; but after the year has elapsed, I will grant one with reference to what has come into the hands of him who dispossessed the complainant by force.” 1This interdict was established for the benefit of a person who has been ejected by force; as it is perfectly just to come to his relief under such circumstances. This interdict was devised to enable him to recover possession. 2It is provided by the different Leges Julia, having reference to public and private causes, as well as by various Imperial Constitutions, that force shall not be employed. 3This interdict does not have reference to all kinds of violence, but only to such as is used against persons who are deprived of possession. It only relates to atrocious violence, and where the parties are deprived of the possession of the soil; as, for instance, to a tract of land, or a building, but to nothing else. If anyone is deprived of the possession of land upon which no buildings are situated, there will undoubtedly be ground for the interdict. 4Generally speaking, this interdict has reference to anyone who is dispossessed of property attached to the soil, and no matter what the place may be from which he was forcibly ejected, the interdict will apply. 5Hence, if he was ejected from a house, and has no interest in the ground on which it stands, it is evident that there will be ground for the interdict. 6Nor does any doubt exist that this interdict has no reference to chattels; for in a case of theft, or where anything is taken by violence, another action will lie. The injured party can also bring suit for the production of the property. There is no doubt whatever that, if there is any personal property on the land, or in the house from which he was ejected, the interdict will also lie with reference to said property. 7This interdict is not applicable where anyone is forcibly deprived of the possession of a ship, the proof of which is, that where anyone is deprived of a vehicle in this manner, no one will say that he can avail himself of this proceeding. 8No one entertains any doubt that this interdict can be employed if a man is dispossessed of a house built of wood; because no matter what the nature of the property which is attached to the soil may be, the interdict will lie if he is forcibly ejected from the house. 9He who possesses the property is said to be forcibly ejected whether he held the same under Civil or Natural Law, as natural possession affords ground for this interdict. 10Finally, if a wife is ejected from property which her husband has given her, she can avail herself of the interdict; but a tenant cannot do so if he is dispossessed. 11The Prætor says, “if you or your slaves have forcibly ejected him.” The slaves are very properly mentioned, for the words, “you have forcibly ejected,” have reference to him personally who committed the act of violence, and do not refer to his slaves; for if my slaves should eject anyone, I will not be considered to have done so; and hence it was necessary to add, “or your slaves.” 12He also is considered to have ejected someone by force who directed or ordered this to be done. For it evidently makes very little difference whether one person dispossesses another with his own hands, or by the agency of someone else. Therefore, if my slaves should eject anyone with my consent, I myself will be held to have ejected him. 13Whenever a duly authorized agent has ejected anyone by force, Sabinus says that proceedings can be instituted against both parties, namely, against the principal as well as the agent, and that one of them is discharged from liability by the condemnation of the other; provided, however, that the amount of the appraisement in court has been paid by one of them; for he is not more excusable who ejected a person by the order of another than if he had killed a man by the direction of someone else. But where the alleged agent falsely represents himself as having authority, proceedings under the interdict should be instituted against him alone. The opinion of Sabinus is correct. 14If, however, I should ratify the act of someone who, in my name, has ejected a person by force; some authorities adopt the opinion of Sabinus and Cassius, who hold that the ratification is equal to a mandate, and that I should be considered to have ejected him, and hence I will be liable under this interdict. This is correct, because, where an offence is committed, it is perfectly just to compare a ratification to a mandate. 15Where it is added, “or your slaves,” this is very properly stated with reference to cases in which my slaves have forcibly ejected anyone. If, however, the master ordered this to be done, he himself committed the act of dispossession; but if he did not order it, he should not complain if he is liable for the acts of his slaves, even though they did not eject the person by his order; for he is not oppressed on this account, as something has either come into his hands which he must return, or if this is not the case, he will be released from liability if he surrenders his slaves by way of reparation for the offence which they committed. And although he is compelled to surrender his slaves by way of reparation, he should take this into consideration in estimating the damage which he has sustained; as a slave can injure his master in this way. 16By the term “slaves” the entire body of slaves is understood. 17But the inquiry is made, what number of slaves are included in this term, whether only two or three, or more. In considering the application of this interdict, the better opinion is that if only a single slave should eject anyone by force, the entire body of slaves shall be deemed to have committed the act. 18In the term “slaves,” it must be said that all of those are included whom we hold as such. 19If anyone refuses to defend his slave, or slaves, he should be compelled to submit to this interdict; or at least to the extent of forcing him to return whatever has come into his hands. 20If a son under paternal control, or a day laborer, dispossesses anyone by force, an available interdict will lie. 21If I make use of the interdict against anyone who, while in a state of freedom, is demanded as a slave, or vice versa, after legal proceedings have been instituted, and the man has been decided to be free, and it is proved that I have been forcibly ejected by his slaves, without his knowledge, I must be replaced in possession. 22An owner is considered to have possession of property which is held by his slave, his agent, or his tenant. Therefore, if any of these is forcibly deprived of possession, he himself is also considered to be dispossessed, even if he did not know that those by whom he had possession have been ejected. Hence, if anyone else, by whom I held possession, should be ejected, no one can entertain any doubt that I will be entitled to the benefit of the interdict. 23This interdict, however, will not lie in favor of anyone, unless he was in possession at the time when he was ejected, for no one is considered to have been ejected unless he was in possession. 24It is clear that anyone should be considered to have been ejected by force, where he held the property either corporeally or by intention. Hence, if he should depart from his land or his house, leaving none of his people there, and, on his return, should be prevented from entering upon his premises; or if anyone should stop him in the middle of his journey, and take possession of his property, he will be considered to have been ejected by force; for he has been deprived of possession which he held by intention, but not corporeally. 25The common saying that, “Possession of winter and summer resorts is not held by intention,” is given by way of an example, of which Proculus availed himself. The same rule will apply to all real property from which we temporarily withdraw without the intention of relinquishing possession of the same. 26The better opinion is to hold that a person is not dispossessed who did not have possession of property either by intention or corporeally, and not he who was prevented from entering upon the same, and taking possession of it; for he is ejected who loses possession, and not he who is not permitted to take it. 27Cassius says that one can repel force with force; for this right is conferred by the Law of Nature. Hence he holds that it is clear that armed aggression can be repelled by arms. 28To possess by force should be defined to mean where anyone having driven away the former occupant obtains possession by means of violence; or where he comes upon the ground ready and prepared to take possession, and contrary to good morals, has adopted measures to avoid being prevented from taking it. Labeo, however, says that he does not possess by violence who retains anything by the exertion of force. 29Labeo also says that he who, alarmed by the appearance of a crowd of persons, takes to flight, is held to have been ejected by force. Pomponius, likewise, says that violence does not exist without the exertion of corporeal force. I think that he who fled on account of the approach of a crowd should be considered to have been forcibly ejected, if they take possession of his property. 30Anyone who has taken possession of my property by force will be entitled to the benefit of the interdict, if he himself is ejected by another. 31Anyone who has been forcibly dispossessed can recover damages for all injury sustained through being ejected; for he must be placed in the same condition in which he would have been if he had not been dispossessed. 32If a tract of land of which I have been dispossessed is returned to me, but any other property of which I have been deprived by force is not returned, it must be said that the interdict will still lie; because it is true that I have been forcibly dispossessed. It is clear that if anyone desires to avail himself of this interdict with reference to the possession of the land, as well as of an action to compel the production of the personal property in court, he can do so, according to his discretion. This was stated by Julianus, and he adds that anyone has a right to bring suit for property taken by violence, in a case of this kind. 33Where the Prætor says, “which he had there,” we should understand this to mean all the property, not only that which belonged to him, but also all that was deposited with him, or lent or pledged to him, and of which he had the use or usufruct, or care, or any which was hired to him. For when the Prætor uses the word, “had,” property of every description is included in the term. 34Moreover, the Prætor very properly adds, “which he had at that time,” and we must understand the words, “at that time,” to mean when he was dispossessed. Hence, if he ceased to have possession of anything in that place afterwards, it must be said that the interdict will apply. Thus it happens that even if slaves or cattle have died since his dispossession, there will be ground for the interdict. Finally, Julianus says that where anyone has been forcibly deprived of a tract of land on which there were slaves, and the slaves afterwards died without his fault, their appraised value ought to be paid to him by means of the interdict; just as a thief, who had stolen a slave, is liable after the death of the slave. 35The result of this is that he will be compelled to refund the price of farm-houses or other buildings destroyed by fire; for Julianus says, where anyone has been ejected, the other party is always held responsible for preventing him from obtaining restitution. 36Therefore he asserts that it is established that anyone who has ejected another by force, and has afterwards lost possession without being guilty of fraud, will be liable under the interdict. 37The word “there” is mentioned by the Prætor, in order that no one can include property which he did not have in that place. 38But how shall we understand the word “there,” which the Prætor makes use of? Is the place from whence he was forcibly ejected meant, or does it refer to the entire place of possession? It is better to hold that it does not refer to a corner or place in which the person may have been, but to the entire property possessed, of which he was deprived when he was ejected. 39The year when this interdict is involved is an available one. 40In estimating the profits, the calculation is made from the day on which the person was ejected, although, in other interdicts, it is calculated from the day upon which they are issued, and the computation is not made beyond that time. The same rule applies to movable property which happened to be there, for its profits should be reckoned from the date on which the person was forcibly dispossessed. 41Not only an accounting for the profits must be had under this interdict, but that of any other benefits to which the plaintiff might have obtained. For Vivianus says that he who is dispossessed, even if violence was not used, will, under this edict, be entitled to restitution of everything which he would have had or acquired, or the judge must make an appraisement of the same, so that the party may obtain judgment to the extent of his interest in not having been dispossessed. 42Under the interdict Unde vi, even if the party is not in possession, he will be compelled to make restitution. 43As this interdict takes into account the atrocity of the illegal act committed, the question arises whether it will lie in favor of a freedman against his patron, or in favor of children against their parents. The better opinion is that it should not be granted to a freedman against his patron, or to children against their parents; for it will be preferable for them to bring an action in factum; unless the patron has employed armed force against his freedman, or the parent has done so against his children; for, under such circumstances, the interdict will lie. 44This interdict lies in favor of the heir and other successors. 45What is stated by Vivianus proves that the interdict Unde vi is only granted to the party in possession; for if anyone has forcibly ejected me, and did not eject my people, I cannot avail myself of the interdict, because I retain possession by those members of my family who have not been ejected. 46Vivianus also says that if anyone has driven away your slaves by force, and kept others and chained them, or given them commands, you are understood to have been forcibly ejected, for you cease to hold possession, as your slaves are possessed by another; and what is said with reference to a part of the slaves applies to all, if none of them were driven away, but all were taken possession of by the person who entered upon the property. 47Vivianus also discussed the question and asks what shall we say if I should take possession while someone else occupies the property, and I do not eject the possessor, but, having chained him, compel him to work? I think that the better opinion is that he who was placed in chains should be considered to have been forcibly ejected. 48An action in factum will, under this interdict, lie against the heir and the prætorian possessor of an estate, as well as other possessors, for whatever has come into their hands;
2 Paulus libro sexagensimo quinto ad edictum. dolove malo eorum factum est, quo minus perveniret.
2 Paulus, On the Edict, Book LXV. Or for anything which they may have acquired through any fraudulent acts committed by them.
3 Ulpianus libro sexagensimo nono ad edictum. Quod est et si quis armis deiectus est, quia ex facinoribus defunctorum de eo, quod ad heredem pervenit, actio datur: sufficit enim non in lucro versari eum heredem, non etiam damnum subire. 1Haec actio, quae adversus heredem ceterosque successores pertinet, perpetuo competit, quia in ea rei persecutio continetur. 2Armis deiectum quomodo accipimus? arma sunt omnia tela, hoc est et fustes et lapides, non solum gladii hastae frameae, id est rhomphaeae. 3Plane et si unus vel alter fustem vel gladium tenuit, armis deiectus possessor videtur. 4Plus dicitur, et si inermes venerant, si in ipsa concertatione qui inermes venerant eo processerunt, ut fustes aut lapides sumerent, vis erit armata. 5Qui armati venerunt et si armis non sunt usi ad deiciendum, sed deiecerunt, armata vis facta esse videtur: sufficit enim terror armorum, ut videantur armis deiecisse. 6Si quis autem visis armatis, qui alibi tendebant, metu hoc deterritus profugerit, non videtur deiectus, quia non hoc animo fuerunt qui armati erant, sed alio tendebant. 7Proinde et si, cum armatos audisset venire, metu decesserit de possessione, sive verum sive falsum audisset, dicendum est non esse eum armis deiectum, nisi possessio ab his fuerit occupata. 8Si autem, cum dominus veniret in possessionem, armati eum prohibuerunt qui invaserant possessionem, videri eum armis deiectum. 9Eum igitur, qui cum armis venit, possumus armis repellere, sed hoc confestim, non ex intervallo, dummodo sciamus non solum resistere permissum, ne deiciatur, sed et si deiectus quis fuerit, eundem deicere non ex intervallo, sed ex continenti. 10Cum procurator armatus venit, et ipse dominus deiecisse videtur, sive mandavit sive, ut Iulianus ait, ratum habuit. 11Hoc et in familia dicendum est: nam cum familia sine me armata venit, ego non videor venisse, sed familia, nisi iussi vel ratum habui. 12Hoc interdictum etiam adversus eum proponitur, qui dolo malo fecit, quo quis armis deiceretur: et post annum reddetur in id, quod pervenit ad eum qui prohibuit unde vi. 13Interdictum necessarium fuisse fructuario apparet ‘si prohibeatur uti frui usu fructu fundi’. 14Uti frui autem prohibuisse is videtur, qui vi deiecit utentem et fruentem aut non admisit, cum ex fundo exisset non usus fructus deserendi causa. ceterum si quis ab initio volentem incipere uti frui prohibuit, hoc interdictum locum non habet. quid ergo est? debet fructuarius usum fructum vindicare. 15Pertinet autem hoc interdictum ad eum, qui fundo uti frui prohibitus est: sed pertinebit etiam ad eum, qui aedificiis uti frui prohibetur. consequenter autem dicemus ad res mobiles hoc interdictum non pertinere, si quis uti frui prohibitus est re mobili, nisi si rei soli accedebant res mobiles: si igitur ibi fuerunt, dicendum est etiam ad eas referri hoc interdictum debere. 16Item si non usus fructus, sed usus sit relictus, competit hoc interdictum. ex quacumque enim causa constitutus est usus fructus vel usus, hoc interdictum locum habebit. 17Qui usus fructus nomine qualiterqualiter fuit quasi in possessione, utetur hoc interdicto. sed si quis, posteaquam prohibitus est, capite minutus sit vel mortuus, recte dicitur heredibus et successoribus competere hoc interdictum, non ut in futurum constituatur usus fructus, sed ut praeterita causa et damnum praeteritum sarciatur. 18Heres quoque simili modo debebit in factum actionem suscipere in id quod ad se pervenit.
3 Ulpianus, On the Edict, Book LXIX. The same rule will apply where anyone has been ejected by armed force, because an action is granted on account of any illegal act of the deceased for the amount which may have come into the hands of the heir. It is, however, sufficient that the heir should not have obtained any profit, for he must not suffer any loss. 1This action, which can be brought against the heir and other successors, is a perpetual one, because it involves the pursuit of property. 2What shall we understand the words, “ejected by armed force,” to signify? Arms include all missile weapons, that is to say, not only swords, spears, javelins, or darts, but also sticks and stones. 3It is clear that if only one or two persons have sticks or swords, the possessor will be considered to have been ejected by armed force. 4Moreover, even where the aggressors come unarmed, if, at the time of the quarrel, those who came unarmed should proceed to use sticks or stones, this will be the employment of armed force. 5Even if those who came armed did not use their weapons in order to drive away the party in possession, but laid them aside, armed force will be held to have been employed; for the fear of weapons is sufficient to establish the fact of dispossession by armed force. 6If anyone, having seen armed men going elsewhere, became so terrified on this account as to take to flight, he is not considered to have been dispossessed; because the men who were armed had no intention of molesting him, but were on their way elsewhere. 7Hence, if anyone should hear that armed men are approaching, and relinquishes possession of his property through terror, it must be said that he has not been dispossessed by armed force; whether what he heard was true or false, unless possession is actually taken by the said persons. 8If, however, when the owner was about to take possession, armed persons, who have already seized his property, should prevent him from doing so, he is considered to have been ejected by armed force. 9Therefore, we can repel by the use of arms anyone who comes armed, but this must be done immediately, and not after some time has elapsed; if we remember that not only resistance can be offered to forcible ejection, but also that he who has been ejected can himself expel the intruder, if he does so at once, and not after any time has passed. 10If the person who comes armed is an agent, his principal will be considered to have used armed force in the dispossession, whether he directed this to be done, or, as Julianus says, subsequently ratified it. 11This also applies to the case of slaves; for if my slaves come armed without me, I am not considered to have come, but my slaves; unless I directed them to do so, or ratified their act. 12This interdict can also be employed against one by whose fraudulent conduct a person has been dispossessed by armed force; and will be granted, after the lapse of a year, for the recovery of whatever has come into the hands of him who was responsible for the act. 13It is evident that the interdict Unde m will be necessary for an usufructuary, if he is prevented from using and enjoying the usufruct of land. 14An usufructuary is understood to have been prevented from using and enjoying his right, when he is forcibly ejected while availing himself of his privilege, or is not allowed to enter upon the land, when he has left it without the intention of relinquishing his usufruct. If, however, anyone should prevent him from using and enjoying it in the beginning, there will not be ground for this interdict. What, then, should be done? The usufructuary must bring an action for the recovery of his usufruct. 15Again, this interdict has reference to him who is prevented from using and enjoying land, as well as to him who is interfered with in the use and enjoyment of a house. Consequently, we hold that it does not apply to movable property, where anyone is hindered from using and enjoying it, unless the said movable property is accessory to the land. Therefore, if the property was on the land, it must be said that this interdict will apply to it. 16Likewise, if not the usufruct, but only the use of the property was bequeathed, this interdict will lie; for, no matter in what way the usufruct or use was established, this interdict will be applicable. 17Anyone who has obtained possession of property in any way whatsoever, as an usufructuary, can avail himself of this interdict. If anyone who has been prevented from enjoying his privilege should afterwards forfeit his civil rights, or die, it is very properly held that this interdict will lie in favor of his heirs and successors; not for the purpose of constituting another usufruct, but in order that any damage which has been sustained in the past may be made good. 18In like manner, the heir is also liable to an action in faction for anything which has come into Tiis hands.
4 Idem libro decimo ad edictum. Si vi me deiecerit quis nomine municipum, in municipes mihi interdictum reddendum Pomponius scribit, si quid ad eos pervenit.
4 The Same, On the Edict, Book X. If anyone dispossesses me by force, in the name of a municipality, Pomponius says that I will be entitled to an interdict against the said municipality, provided anything has come into its hands.
5 Idem libro undecimo ad edictum. Si per vim tibi possessionem tradidero, dicit Pomponius unde vi interdictum cessare, quoniam non est deiectus, qui compulsus est in possessionem inducere.
5 The Same, On the Edict, Book XI. If I place you in possession of property in compliance with a judicial decree, Pomponius says that the interdict Unde vi will not apply, as he is not forcibly ejected who is compelled to place another in possession.
6 Paulus libro septimo decimo ad edictum. In interdicto unde vi tanti condemnatio facienda est, quanti intersit possidere: et hoc iure nos uti Pomponius scribit, id est tanti rem videri, quanti actoris intersit: quod alias minus esse, alias plus: nam saepe actoris pluris interesse hominem retinere, quam quanti is est, veluti cum quaestionis habendae aut rei probandae gratia aut hereditatis adeundae intersit eius eum possideri.
6 Paulus, On the Edict, Book XVII. When a decision is rendered under the interdict Unde vi, it should be for the value of the interest the plaintiff had in remaining in possession of the property. Pomponius says that this is our practice, that is to say, that the property is considered to be equal in value to the interest of the plaintiff. This may be either less, or more, for often it is more to the interest of the plaintiff to retain a slave than he is worth; for example, where it is to the interest of the owner to have possession of him, either that he may be put to torture, or prove some fact, or accept an estate.
7 Idem libro vicensimo quarto ad edictum. Cum a te vi deiectus sim, si Titius eandem rem possidere coeperit, non possum cum alio quam tecum interdicto experiri.
7 The Same, On the Edict, Book XXIV. If I have been forcibly ejected by you, and Titius has begun to possess the same property, I can institute proceedings under the interdict against no one but yourself.
8 Idem libro quinquagensimo quarto ad edictum. Fulcinius dicebat vi possideri, quotiens vel non dominus, cum tamen possideret, vi deiectus est.
8 The Same, On the Edict, Book LIV. Fulcinius was accustomed to say that possession was acquired by violence, whenever anyone who was not the owner, but who was in possession, was forcibly ejected.
9 Idem libro sexagensimo quinto ad edictum. Si plures heredes sunt, unusquisque non in amplius, quam ad eum pervenerit, tenetur. qua de causa interdum in solidum tenebitur is ad quem totum pervenerit, quamvis ex parte heres sit. 1Deiectum ab usu fructu in eandem causam praetor restitui iubet, id est in qua futurus esset, si deiectus non esset. itaque si tempore usus fructus finitus fuerit, postquam deiectus est a domino, nihilo minus cogendus erit restituere, id est usum fructum iterum constituere.
9 The Same, On the Edict, Book LXV. Where there are several heirs, each of them is only liable for the amount which has come into his hands. For which reason an heir will sometimes be liable for the entire amount that came into his hands, even though he may only have inherited a portion of the estate. 1The Prætor orders anyone who has been forcibly deprived of an usufruct to be restored to his former condition; that is to say, the condition in which he would have been if he had not been ejected. Therefore, if the usufruct should be terminated by lapse of time, after the usufructuary has been deprived of it by the owner, the latter will, nevertheless, be compelled to make restitution, that is to say, to again establish the usufruct.
10 Gaius libro secundo ad edictum praetoris urbani titulo de liberali causa. Si de fundo proprietarium et fructuarium praedo expulerit atque ob id fructuarius constituto tempore non usus perdiderit ius suum, nemo dubitat, quin dominus, sive experiatur cum fructuario adversus praedonem sive non experiatur, retinere debeat reversum ad se usum fructum et, quod fructuarius perdidit, id ad damnum eius pertineat, cuius facto periit.
10 Gaius, On the Edict of the Urban Prætor, Title: On Cases Involving Freedom. If a trespasser should expel both the owner and the usufructuary from a tract of land, and the usufructuary should lose his right on account of not having used it during the prescribed time, no one doubts that the owner can institute proceedings against the trespasser, either alone or with the usufructuary; or, if he should not do so, he can retain the usufruct after it has been restored to him, and any damages sustained by the usufructuary shall be recovered from him who was responsible for the loss.
11 Pomponius libro sexto ex Plautio. Vim facit, qui non sinit possidentem eo, quod possidebit, uti arbitrio suo, sive inserendo sive fodiendo sive arando sive quid aedificando sive quid omnino faciendo, per quod liberam possessionem adversarii non relinquit.
11 Pomponius, On Plautius, Book VI. He employs force who does not permit the party in possession to make use of the property in any way that he may desire, whether by sowing seed, or cultivating, or digging, or plowing, or building upon it, or by the commission of any other act which interferes with the free possession of the land by his adversary.
12 Marcellus libro nono decimo digestorum. Colonus eum, cui locator fundum vendiderat, cum is in possessionem missus esset, non admisit: deinde colonus vi ab alio deiectus est: quaerebatur, quis haberet interdictum unde vi. dixi nihil interesse, colonus dominum ingredi volentem prohibuisset an emptorem, cui iussisset dominus tradi possessionem, non admisit. igitur interdictum unde vi colono competiturum ipsumque simili interdicto locatori obstrictum fore, quem deiecisse tunc videretur, cum emptori possessionem non tradidit, nisi forte propter iustam et probabilem causam id fecisset.
12 Marcellus, Digest, Book XIX. A tenant refused to permit a man to whom the lessor had sold the land and directed to take possession to enter upon it; and this tenant was afterwards forcibly dispossessed by another. The question arose, who would be entitled to the interdict Unde vi? I held that it did not make any difference whether the tenant prevented the owner himself, or the purchaser to whom the owner had ordered possession to be given, from entering upon the premises. Hence the interdict Unde vi would lie in favor of the tenant, and he himself would be liable to a similar interdict in favor of the lessor, whom he was considered to have ejected, when he refused to give possession to the purchaser, unless he did so for a just and reasonable cause.
13 Ulpianus libro octavo ad Sabinum. Neque unde vi neque aliud interdictum famosum est.
13 Ulpianus, On Sabinus, Book VIII. Neither the interdict Unde vi nor any other interdict implies infamy.
14 Pomponius libro vicensimo nono ad Sabinum. Sed si vi armata deiectus es, sicut ipsum fundum recipis, etiamsi vi aut clam aut precario eum possideres, ita res quoque mobiles omnimodo recipies.
14 Pomponius, On Sabinus, Book XXIX. If, however, you are ejected by armed force, you will be entitled to recover the land, even if you originally obtained possession of it either by violence, or clandestinely, or under a precarious title.
15 Paulus libro tertio decimo ad Sabinum. Si vi me deieceris vel vi aut clam feceris, quamvis sine dolo et culpa amiseris possessionem, tamen damnandus es, quanti mea intersit, quia in eo ipso culpa tua praecessit, quod omnino vi deiecisti aut vi aut clam fecisti.
15 Paulus, On Sabinus, Book XIII. If you forcibly ejected me, or if you cause this to be done by violence or clandestinely, even though you may afterwards lose possession without being guilty of fraud or negligence, you will still be liable to have judgment rendered against you for the amount of my interest; because you were to blame in the first place, as you either ejected me by force, or caused this to be done by violence, or clandestinely.
16 Ulpianus libro vicensimo nono ad edictum. In interdicto unde vi dicendum est, ut eius causa, quod ad patrem pervenit, ipse teneatur.
16 Ulpianus, On the Edict, Book XXIX. It must be said with reference to the interdict Unde vi that, in the case of dispossession by a son under paternal control, his father will be liable for anything which has come into his hands.
17 Iulianus libro quadragensimo octavo digestorum. Qui possessionem vi ereptam vi in ipso congressu reciperat, in pristinam causam reverti potius quam vi possidere intellegendus est: ideoque si te deiecero, ilico tu me, deinde ego te, unde vi interdictum tibi utile erit.
17 Julianus, Digest, Book XLVIII. Where anyone forcibly recovers possession of property of which he was deprived by violence during the same dispute, he is understood to have been restored to his former position rather than to have regained possession of the property by violence. Therefore if I deprive you of anything by force, and you wrest it from me in the same way, and then I again take it from you, you can avail yourself of the interdict Unde vi against me.
18 Papinianus libro vicensimo sexto quaestionum. Cum fundum qui locaverat vendidisset, iussit emptorem in vacuam possessionem ire, quem colonus intrare prohibuit: postea emptor vi colonum expulit: de interdictis unde vi quaesitum est. placebat colonum interdicto venditori teneri, quia nihil interesset, ipsum an alium ex voluntate eius missum intrare prohibuerit: neque enim ante omissam possessionem videri, quam si tradita fuisset emptori, quia nemo eo animo esset, ut possessionem omitteret propter emptorem, quam emptor adeptus non fuisset. emptorem quoque, qui postea vim adhibuit, et ipsum interdicto colono teneri: non enim ab ipso, sed a venditore per vim fundum esse possessum, cui possessio esset ablata. quaesitum est, an emptori succurri debeat, si voluntate venditoris colonum postea vi expulisset. dixi non esse iuvandum, qui mandatum illicitum susceperit. 1Eum, qui fundum vindicavit ab eo, cum quo interdicto unde vi potuit experiri, pendente iudicio nihilo minus interdicto recte agere placuit.
18 Papinianus, Questions, Book XXVI. If anyone sells a tract of land which he has leased, and directs the purchaser to take possession of the same, and the tenant prevents him from doing so, and the purchaser afterwards forcibly expels the tenant, the question arises, who will be entitled to the interdict Unde vi? It was established that the tenant would be liable to the interdict in favor of the vendor; because it made no difference whether he himself, or another who was sent by him, had prevented him from taking possession. For possession can not be held to have been lost before the property has been delivered to the purchaser, because no one has the intention of losing possession in favor of a purchaser, before the latter himself has obtained it. The purchaser, also, who afterwards employed force, would himself be liable to the interdict in favor of the tenant; for it was not from him, but from the vendor, who had himself been deprived of it, that forcible possession of the land had been acquired. The question arose whether relief should be granted to the purchaser, if he had afterwards forcibly expelled the tenant, with the consent of the vendor. I gave it as my opinion that he was not entitled to relief, because he had undertaken the execution by an unlawful mandate. 1Where anyone brings suit to recover land against a person who is liable under the interdict Unde vi, it has been decided that, while the case is pending, proceedings based upon the interdict can be legally conducted.
19 Tryphoninus libro quinto decimo disputationum. Merito Iulianus respondit, si me de fundo vi deieceris, in quo res moventes fuerunt, cum mihi interdicto unde vi restituere debeas non solum possessionem soli, sed et ea quae ibi fuerunt, quamquam ego moram fecero, quo minus interdicto te convenirem, subtractis tamen mortalitate servis aut pecoribus aliisve rebus casu intercidentibus tuum tamen onus nihilo minus in eis restituendis esse, quia ex ipso tempore delicti plus quam frustrator debitor constitutus es.
19 Tryphoninus, Disputations, Book XV. Julianus very properly held that if you forcibly dispossess me of land, on which there is movable property, you will be obliged, under the interdict Unde vi, to restore to me not only the possession of the land, but also that of the movable property which was there at the time; even though I may have been in default in proceeding against you under the interdict; so that if some of the slaves or cattle have died, or any other property has been destroyed by accident, you will, nevertheless, be obliged to make restitution, because you are in default more than a debtor is considered to be.
20 Labeo libro tertio pithanon a Paulo epitomatorum. Si colonus tuus vi deiectus est, ages unde vi interdicto. idem si inquilinus tuus vi deiectus fuerit. Paulus: idem dici potest de coloni colono, item inquilini inquilino.
20 Labeo, Epitomes of Probabilities by Paulus, Book III. If your tenant has been forcibly ejected, you can proceed under the interdict Unde vi. The same rule should be adopted if the lessee of your house is forcibly ejected. Paulus: This also applies to a sub-tenant, or a sub-lessee.