|
|
Roman Law
11/27/2007
Outline
|
|
| actio Publiciana. There
is also general agreement that the “&c.” should be filled out: “if this
man is not restored to Aulus Agerius, whatsoever amount the matter shall
be, condemn Numerius Negidius to pay so much money to Aulus Agerius, and if
it does not appear, absolve him.”
That is the same formula used in the rei vindicatio. Whether
the words “in good faith” should be added after “delivered to him” is more
controversial.
D.6.2(On the actio Publiciana in
rem).1
pr. (Ulpian, On the
Edict, book 16). The prætor says: “Where anyone claims something that
has delivered to him by a [non-owner] for good reason (iusta causa)
and has not yet been usucapted, I will grant him an action.”
D.6.2.1.1–2. (Ulpian, On
the Edict, book 16): 1. The prætor says, and very properly, “not
yet been usucapted”; for, if this has once taken place, he has a right to a
civil action and does not require an honorary one. 2. But why did he
merely mention delivery and usucaption, when there are numerous provisions
of the law by means of which anyone may obtain ownership, for instance,
legacies?
2. Paul, On the
Edict, book 19. or gifts made in contemplation
of death (mortis causa); for the Publician action can be brought
where possession has been lost, because they are taken as analogous to
legacies.
3. Ulpian, On the Edict,
book 16. And there are many other provisions of the law to the same effect.
1 The prætor says: “He may claim for a good reason”; and not only is
the Publician action available by a purchaser in good faith, but also by
others; as for instance, by one to whom property has been transferred by
way of dowry, and which has not yet been acquired by usucaption; for a very
good cause of action exists whether the property given by way of dowry was
appraised or not. Likewise, where property is transferred on account of a
judgment:
4. Paul, On the Edict,
book 19. Or for the purpose of paying a debt,
5. Ulpian, On the Edict,
book 16. Or for the surrender of a slave in lieu of damages, whether there
was good ground for this, or not.
6. Paul, On the Edict,
book 19. Moreover, in a noxal action, where no defence was made, I can
remove the slave by order of the prætor and if, after removing him, I lose
possession of him, I can avail myself of the Publician action.
7. Ulpian, On the Edict,
book 16. But if the property has been adjudged to me, I can bring the
Publician action. 1. Where the value of the property is estimated in
court it resembles a slave; and Julian says in the twenty-second book of
his Digest that, if the defendant tenders the amount of the
appraisement, the Publician action will lie. 2. Marcellus, in the
twenty-seventh book of his Digest, says that where anyone purchases
property from a person who is insane, being ignorant that this was the
case, he can acquire it by usucaption; and therefore he will have a right
to the Publician action. 3. Where anyone obtains property as a gift,
he is entitled to the Publician action; which also will lie against a
donor; for the plaintiff is a lawful possessor where he accepts a donation.
4. Where a party purchases property from a minor, being ignorant
that he is such, he has a right to the Publician action. 5. Also
where an exchange (permutatio, barter) has been made, the same
action will lie. 6. The Publician action is not based on the
question of possession, but upon that of ownership. 7. If you tender
me an oath in a suit which I have brought for the recovery of property, and
I swear that the said property is mine, I am entitled to the Publician
action, but only against you; for the only person who can be prejudiced by
the oath is the party who tendered it. If, however, the oath is tendered to
the possessor, and he swears that the property does not belong to the
plaintiff, he can make use of an exception only against the latter; for it
does not operate to the extent of granting him a right of action. 8.
In the Publician action, all those rules must be observed which we have
mentioned in the action for the recovery of property. 9. This action
lies in favor of an heir as well as of prætorian successors. (Lenel, p.
170, speculates that from this point forward Ulpian was commenting not on
the praetor’s promise of an action but on the formula of the action
itself. If this is correct, that
would suggest that the words bona fides were in the formula (see
paragraph 11).) 10. If I do not make a purchase, but my slave does,
I am entitled to the Publician action. The same rule applies where my
agent, guardian, curator, or anyone else transacting my business makes a
purchase. 11. The prætor says: “Who purchases in good faith”;
therefore, it is not every purchase which can profit by the action, but
only one made in good faith; hence it is enough if I am a purchaser in good
faith even if I should not buy from the owner, although he may have made
the sale to me with fraudulent intent; for the fraud of a vendor will not
prejudice me. 12. In this action it will be of no disadvantage to me
if I am the successor of the purchaser, and acted fraudulently, where the
party himself whom I succeeded made the purchase in good faith; and it will
not profit me if I was not guilty of fraud, where the purchaser whom I
succeeded was guilty of fraud. 13. If, however, my slave made the
purchase, his fraud, and not mine, must be considered; and vice versa. 14.
The Publician action has reference to the time of the purchase, and
therefore it is held by Pomponius that nothing which was fraudulently done,
either before or after the purchase was made, can become the subject of
investigation in this action. 15. This action has reference to the
good faith of the purchaser alone. 16. Therefore, in order for the
Publician action to be available, the following conditions must exist: the
person who made the purchase must have acted in good faith, and the
property purchased must have been delivered to him with that understanding.
But even if he made the purchase in good faith, he cannot make use of the
Publician action before delivery. 17. Julian stated in the seventh
book of his Digest that the delivery of the property purchased must
be made in good faith; and therefore if the party knowingly fakes
possession of something that belongs to another, he cannot avail himself of
the Publician action, because he will not be able to acquire the property
by usucaption. Nor must anyone think that it is our opinion that it is
sufficient for the purchaser to be ignorant that the property belonged to
another at the commencement of delivery, in order to enable him to make use
of the Publician action, but it is necessary that he should be a bona-fide
purchaser later on also. This last phrase probably refers to the completion
of the delivery.
8. Gaius, On the
Provincial Edict, book 7. Nothing, however, is stated with reference to
the payment of the purchase-money; wherefore it must be conjectured that it
is not the opinion of the prætor that it should be asked whether the price
has been paid or not.
9. Ulpian, On the
Edict, book 16. The Publician action is equally available whether the
property is delivered to the purchaser or to his heir. 1. Where a
party purchases property which has been deposited with him, or loaned or
pledged to him, it must be considered as having been delivered, if it
remains in his possession after the purchase. 2. The same rule will apply where the delivery preceded the
purchase. 3. Moreover, if I
purchase an estate, and certain property belonging to it has been delivered
to me for which I wish to bring suit, Neratius states that I will be
entitled to the Publician action. 4. Where anyone sells the same property
separately to two bona-fide purchasers, let us see
which of them has the better right to the Publician action; he to whom the
property was first delivered, or he who merely bought it? Julian, in the
seventh book of his Digest, states: “That if the parties made the
purchase from the same person who was not the owner, he will be preferred
to whom delivery was made first; but if they buy said property from
different persons who were not the owners, the one in possession is in a
better legal position than the one who brings the action; and this opinion
is correct.” 5. This
action is not available with reference to property which cannot be acquired
by usucaption; as, for instance, in the case of articles that had been
stolen, or fugitive slaves. 6.
Where a slave belonging to an estate purchases property before the estate has
been entered upon, and after delivery loses possession of the same; the
heir, very properly, has a right to the Publician action, just as if he
himself had been in possession. The members of a municipality also, where
property has been delivered to their slave, will be in the same position,
10. Paul, On the
Edict, book 19. whether the slave purchased
said property with reference to his own peculium, or not.
11. Ulpian, On
the Edict, book 16. Where I have made a purchase, and the property has
been delivered to another party at my request, the Emperor Severus stated
in a rescript that the Publician action should be granted him. 1. The Publician action is granted
where suit is brought for the recovery of an usufruct which has been
delivered, and also where servitudes of urban estates have been created by
delivery, or by sufferance; for instance, where a party allowed an aqueduct
to be built through his house. The same rule applies in the case of rustic
servitudes, for it is established that in this case delivery and sufferance
protect them. 2. The offspring
of a stolen female slave that was conceived while she was in possession of
a bona-fide purchaser, can be recovered by means of this action; even if
the child was not in possession of the party who purchased it; but the heir
of the thief is not entitled to this action, because he is the successor to
the defective title of the deceased. 3.
Sometimes, however, even though the mother who was stolen had not been
sold, but was presented to me (I being ignorant of the fact) and she
afterwards conceived and brought forth while in my possession, I am
entitled to a Publician action to recover the child, as Julian says;
provided that, at the time I bring suit, I do not know that the mother was
stolen. 4. Julian also states,
in a general way, that no matter how I could acquire the mother by
usucaption, if she had not been stolen, I can acquire the child in the same
way, if I was ignorant that the mother had been stolen. Therefore, in all
these instances, I will be entitled to the Publician action. 5. The same rule applies in the
case of the child of the daughter of a female slave, even if it was not
born, but after the death of its mother was extracted from her womb by the
Cæsarean operation; as Pomponius stated in the fortieth book. 6. He also says that where a house
has been purchased and is destroyed, any additions made to it can be
recovered by an action of this description. 7. Where an accession is made to land by alluvial deposit, it
becomes of the same nature as that to which it is added; and therefore
since the land itself cannot be recovered by a Publician action, the
addition cannot be either; but if it can, the portion added by alluvion may
be also recovered; and this was mentioned by Pomponius. 8. He also adds that, where an
action is to be brought for parts of a purchased statue which have been
removed, a similar action is available. 9. He also states, that if I purchase a vacant lot and build a
house upon it, I can properly make use of the Publician action. 10. He also says, if I build a
house, and the lot afterwards becomes vacant, I can likewise make use of
the Publician action.
12. Paul, On the
Edict, book 19. Where a man presented a slave to his betrothed, and,
before the title passed by usucaption, received him back by way of dowry;
it was stated by the deified Pius in a rescript that if the parties were
divorced, the slave should be returned, for a gift between two betrothed
persons is valid; and therefore she, as the possessor, will be granted an
exception; and if possession should have been lost, the Publician action
would be granted, whether a stranger or the donor was in possession of the
property. 1. Where an estate is
delivered to anyone under the Trebellian decree of the Senate, even if the
party should not obtain possession of the same, he can make use of the
Publician action. 2. In the case
of perpetual leases and other real property which can not be acquires by
usucaption, the Publician action is available where a bona-fide delivery of
the land has been made. 3. The
same rule applies where I purchased in good faith, from a person who is not
the owner, a house which carried with it the surface of the land. 4. If the property is of such a
nature that some law or constitution forbids its alienation, in this
instance the Publician action will not lie, because, under such
circumstances, the prætor affords no protection to anyone to prevent his
breaking the law. 5. We can make
use of the Publician action even in the case of an infant slave less than a
year old. 6. Where anyone wishes
to recover a portion of some property he can avail himself of the Publician
action. 7. He also can properly
employ this action who has had possession only for a moment.
13. Gaius, On the
Provincial Edict, book 7. Wherever property is legally acquired by us
in any way and is lost, this action will be granted to us for the purpose
of recovering said property. 1.
Sometimes, however, the Publician action can not be brought by persons who
have lawfully obtained possession; for possession derived from pledge and
precarious gifts is lawful; but a right of action is not usually allowed in
cases of this kind, of course, for the reason that neither the creditor nor
the party who has a precarious title obtains possession with the understanding
that he shall believe himself to be the owner. 2. When anyone makes a purchase from a minor, he must prove
that he did so with the consent of his guardian, and not in violation of
law. But where he made the purchase through the deceit of a pretended guardian,
he is held to have acted in good faith.
14. Ulpian, On
the Edict, book 16. Papinian states in the sixth book of his Questions
that where a man forbids delivery or gives notice, and the property has
been sold by his agent at his request, and the agent delivered it in spite
of this; the prætor will protect the purchaser, whether he is in
possession, or whether he brings an action to recover the property. But
where the agent is compelled to make payment to the purchaser on account of
an action based on purchase, the former can recover in a counter action on
mandate; for it might happen that the property could be recovered from the
purchaser by the party who gave the order to sell it, because through
ignorance he did not make use of the exception which he should have
pleaded, for instance: “If the party with whom I dealt did not make the
sale with your consent.”
15. Pomponius, On
Sabinus, book 3. If my slave, while in flight, purchases property from
some one who is not the owner, the Publician action will lie in my favor,
even though I may not have obtained possession, through him, of the
property delivered.
16. Papinian, Questions,
book 10. Paul states in a note that an exception on the ground of legal
ownership may be pleaded in bar of the Publician action. (In considering
the impact of this exception, we should bear in mind the availability of
the exceptio rei venditae et traditae (exception of a thing sold and
delivered), which here would be brought as a replication.)
17. Neratius, Parchments,
book 3. The Publician action was not invented for the purpose of depriving
the real owner of his property (and this is proved in the first place on
equitable principles; and in the second place by the use of the exception:
“If the property in dispute does not belong to the possessor”); (This
probably refers to the same exception referred to in fragment 16, but it is
certainly an awkward was of phrasing it.) but, for the reason that where a
man purchases anything in good faith and has obtained possession of it, he,
rather than his adversary, should be entitled to hold it.
|
|
GI.2.14: “Incorporeal are things that are intangible, such as exist
merely in law, for example an inheritance, a usufruct, obligations however
contracted. ... Incorporeal are also
rights attached to urban and rural lands. Examples of the former are the
right to raise one’s building and so obstruct a neighbor’s lights, or that
of preventing a building from being raised lest neighboring lights be
obstructed, also the right that a neighbor shall suffer rain-water to pass
into his courtyard or into his house in a channel or by dripping; also the
right ot introduce a sewer into a neighbor’s property or to open lights
over it. Examples of rights attached to rural lands are various rights of
way for vehicles, men, and beasts; also that of watering cattle and that of
watercourse. Such rights, whether of urban or rural lands, are called
servitudes.”
D.8.1.1: Marcianus, Rules, book 3: Servitudes are either
attached to persons, as in the case usus and usufruct,
or to things, as in the case of rustic and urban estates.
D.8.4.1: Ulpian, Institutes,
book 2: Buildings are
called urban praedia, and it may be observed that,
even where buildings are part of a country-house, it is still possible to
create servitudes of urban praedia. 1. The
reason why these servitudes are said to be of praedia
(estates, tenements), is that they cannot be created without praedia, as no one can acquire a servitude over urban or
rustic praedia, unless he
has got a praedium
himself.
D.18.1.47–49: 47. Ulpian,
On Sabinus, book 29: If the servitude of a water-course is
attached to a field, the right to take the water passes to the purchaser,
even though nothing had been said with reference to it; just as the pipes
through which the water is conducted also do,
D.8.1.15: Pomponius, On Sabinus, book 33: Wherever a [supposed] servitude cannot
belong to any person or attach to any estate, then, inasmuch as no
neighbour has any interest therein, it has no valid existence; take, for
example, a servitude to the effect that you shall not walk over your own
estate or be upon it. Hence, if you grant me a servitude to the effect that
you shall have no right to the use and produce of your own estate, this is
inoperative; it would be a different thing if it were to the effect that
you should have no right to take water on your own estate in order to
diminish my supply. 1. It is not of the nature of servitudes that a
man should [have to] do anything; for instance, remove shrubs so as to
afford a more pleasing view, or, with the same object, paint something on
his own ground; but only that he should submit to something being done or
abstain from doing something.
D.18.1.81.1: Scaevola, Digest, book 7: … 1. .Lucius Titius promised to
furnish a hundred thousand measures of grain annually from his own land to
that of Gaius Seius. Lucius Titius afterwards sold his land, and inserted
the following words In the contract: “The land of Lucius Titius
is sold today, and is to be held subject to the same rights and the same
conditions as it is now held by the vendor.” I ask whether the purchaser is
responsible to Gaius Seius for the delivery of the grain. The answer was
that, according to the facts stated, the purchaser is not bound to furnish
it.
D.33.1.12: Paulus, Opinions, book 13: Gaius Seius devised to Maevius and
Seia certain tracts of land in different localities, and provided as
follows, “I wish three hundred thousand reeds to be furnished annually by
the Potician to the Lutatian Estate, together with a thousand pounds of
well-cleaned osier, also, every year.”
I ask whether this legacy will be extinguished by the death of the
legatee. Paulus answered that a servitude, either
personal or real, does not seem to have been created in accordance with
law; but that an action on the ground of a trust will lie in favor of the
party to whom the Lutatian Estate was devised. Therefore, as the legacy was
to be paid annually, it is considered to terminate with the death of the
legatee.
D.8.5.6: Ulpian, On the Edict,
book 17: And if it happen that the intervening owner, seeing that he is
under no servitude; raises the height of his buildings, the result being
that I cannot now be held to obstruct your light if I build myself, it is
in vain for you to contend that I have no right to keep up such building
without your consent; at the same time, if within the prescribed period,
the neighbour takes his building down again, your right of action (vindicatio) will be
resuscitated. 1. It should be understood
that in these servitudes the person who is in possession of the easement
still be plaintiff.1 Now,
if it so happen that I have not raised the height of any building on my
land, then the other party is in possession of the easement, as, no
innovation being yet made, he has got possession, and, if I proceed to
build, he can resist me by a civil action or by an interdict quod vi et
clam, or he can stop me equally well by the throw
of a pebble. But if I build without any interference on his part, then I
myself will become the possessor.
2. Furthermore, a right of action exists in respect of a
servitude which was imposed with a view to support (oneris
ferendi causa), the
object being to make the servient owner keep up the support and also keep
his building in repair in such manner and form as was defined at the time
when the servitude was created. Gallus, no doubt, is of opinion that no
servitude can be created to the effect that a man shall be compelled to do
anything, but only that he shall not prevent me from doing something; in
fact, in every servitude, the execution of repairs is the business of the
person who claims the servitude, not of the person whose property is
subject thereto. However, the view of Servius has prevailed, to the effect
that he has a right to compel the other party to repair his wall so as to
support his burden: though what Labeo says is that this servitude binds not
the person, but the property, and he makes it come to this that the owner
is free to abandon the property. 3. And in fact the action is in rem and not in personam, and is open only
to the owner of the [dominant] house and against only the [other] owner,
agreeably to the statement of claim in servitudes in general. 4. If
a [dominant] house belongs to several co-owners, such is the question
discussed by Papinianus (Questions 3), can proceedings be taken in respect of the servitude
in its entirety? To this his answer is that the co-owners can proceed each separately in respect of the whole, as in
the case of other servitudes, setting aside usufruct. But this, he says, is not the
right answer to give where the house which has to support a burden which a
neighbour lays upon it belongs to several co-owners. 5. The kind of
repair that can be sued for in this action depends on the question what
kind of repair was mentioned when the servitude was created: the
arrangement may have been that the party should repair with rectangular
blocks or with built up stones, or any kind of work that was mentioned in
the terms of creation. 6. Profits are taken into account in the action,
in short the advantage which the plaintiff would have gained if the neighbour
[i.e. the defendant] had furnished support to the weight imposed
by the plaintiff’s house. 7. The servient owner is at liberty to
make the wall better than was required by the terms in which the servitude
was created; but, if he proceeds to make it worse, he can be stopped,
either, by means of this action or by “notification of novel structure.”
Lex Coloniae Genitivae Juliae [Urso, Spain] (B.C. 44), c. 75: No
person shall unroof or demolish or dismantle any building in the town of
the colony Julia, unless he furnishes sureties, at the discretion of the
duumvirs, that he has the intention of rebuilding the same, or unless the
decurions allow such act by decree, provided that not less than fifty are
present when the said matter is discussed. If any person acts in
contravention of this regulation he shall be condemned to pay to the
colonists of the colony Genetiva Julia the value of the said building and
shall be sued and prosecuted by any person at will for that amount in
accordance with this law.3
Lex Julia Municipa1is, cc. 10 (B.C. 44): If anyone, who in
accordance with this law properly1 should maintain the public
street in front of his property, does not maintain it as he properly1
should in the judgment of the aedile concerned, the latter at his
discretion shall lease the contract for its maintenance. For at least ten
days before he awards the contract, he shall post in front of his tribunal
in the Forum the name of the street to be maintained, the day on whim the
contract shall be given, and the names of the property owners on that
portion of the street. To the aforesaid owners or their agents at their
homes he shall give notice of his itention to lease the contract for the
aforesaid street and of the day on which the contract shall be given. He
shall make this contract publicly in the Forum through the urban quaestor
or whoever is in charge of the treasury. The urban
quaestor or whoever is in charge of the treasury shall provide that, in the
public records of money due,5 entry
shall be made of that sum for which the contract was awarded in the name of
the person or persons, before whose property the street runs, in proportion
to the length and the breadth of the street in front of each property. He
shall assess this amount, without malicious deception, on the owner or
owners, for the benefit of the person who contracts for the maintenance of
the aforesaid street. If the owner on whom this assessment has been
imposed, or his agent,2 does not pay this money or give security
therefor to the contractor within the next thirty days of his notification
of the assessment, he shall be obliged to pay the amount assessed and a
penalty of half of the amount to the contractor. In a suit for this by
money the magistrate, on application, shall appoint a judex
and grant an action in the same way as it is proper1 for a judex to be appointed and an action to be granted in a
suit for the recovery of a money loan.6
D.7.1.56: Gaius, On the provincial
Edict, book 17: It has been made a question
whether an action in respect of a usufruct ought to be allowed to a
municipal body; the point being that there seemed to be a danger of the
usufruct becoming perpetual, as, it would not be lost by death, and hardly
by capitis diminutio, and
the consequence would be that the ownership would be valueless in
consequence of the usufruct being always outstanding. However the law now
is that an action must be allowed. This leads to a further doubt, viz. as
to how long the municipality is to be protected in the enjoyment of the
usufruct; but it is held that it will be protected for a hundred years,
because that is the utmost extent of the life of a man, .however long he
lives.
D.41.3.4.28(29): Paulus, On the Edict, book 54: It is true that a
release of a servitude can be acquired by usucaption, because the
Scribonian Law, which established a servitude, prohibited the usucaption of
one; but it does not grant a release if the servitude has already been
extinguished. Hence, if I owe you a servitude, for
instance, that which prevents me from building my house any higher, and I
have kept it built higher for the prescribed time, the servitude will be
extinguished.
|
|