Part 7 (1/2)
t.i.tLE VI. OF USUCAPION AND LONG POSSESSION
It was a rule of the civil law that if a man in good faith bought a thing, or received it by way of gift, or on any other lawful ground, from a person who was not its owner, but whom he believed to be such, he should acquire it by usucapion--if a movable, by one year's possession, and by two years' possession if an immovable, though in this case only if it were in Italian soil;--the reason of the rule being the inexpediency of allowing owners.h.i.+p to be long unascertained. The ancients thus considered that the periods mentioned were sufficient to enable owners to look after their property; but we have arrived at a better opinion, in order to save people from being overquickly defrauded of their own, and to prevent the benefit of this inst.i.tution from being confined to only a certain part of the empire. We have consequently published a const.i.tution on the subject, enacting that the period of usucapion for movables shall be three years, and that owners.h.i.+p of immovables shall be acquired by long possession--possession, that is to say, for ten years, if both parties dwell in the same province, and for twenty years if in different provinces; and things may in these modes be acquired in full owners.h.i.+p, provided the possession commences on a lawful ground, not only in Italy but in every land subject to our sway.
1 Some things, however, not withstanding the good faith of the possessor, and the duration of his possession, cannot be acquired by usucapion; as is the case, for instance, if one possesses a free man, a thing sacred or religious, or a runaway slave.
2 Things again of which the owner lost possession by theft, or possession of which was gained by violence, cannot be acquired by usucapion, even by a person who has possessed them in good faith for the specified period: for stolen things are declared incapable of usucapion by the statute of the Twelve Tables and by the lex Atinia, and things taken with violence by the lex Iulia et Plautia.
3 The statement that things stolen or violently possessed cannot, by statute, be acquired by usucapion, means, not that the thief or violent dispossessor is incapable of usucapion--for these are barred by another reason, namely the fact that their possession is not in good faith; but that even a person who has purchased the thing from them in good faith, or received it on some other lawful ground, is incapable of acquiring by usucapion. Consequently, in things movable even a person who possesses in good faith can seldom acquire owners.h.i.+p by usucapion, for he who sells, or on some other ground delivers possession of a thing belonging to another, commits a theft.
4 However, this admits of exception; for if an heir, who believes a thing lent or let to, or deposited with, the person whom he succeeds, to be a portion of the inheritance, sells or gives it by way of dowry to another who receives it in good faith, there is no doubt that the latter can acquire the owners.h.i.+p of it by usucapion; for the thing is here not tainted with the flaw attaching to stolen property, because an heir does not commit a theft who in good faith conveys a thing away believing it to be his own.
5 Again, the usufructuary of a female slave, who believes her offspring to be his property, and sells or gives it away, does not commit a theft: for theft implies unlawful intention.
6 There are also other ways in which one man can transfer to another property which is not his own, without committing a theft, and thereby enable the receiver to acquire by usucapion.
7 Usucapion of property cla.s.sed among things immovable is an easier matter; for it may easily happen that a man may, without violence, obtain possession of land which, owing to the absence or negligence of its owner, or to his having died and left no successor, is presently possessed by no one. Now this man himself does not possess in good faith, because he knows the land on which he has seized is not his own: but if he delivers it to another who receives it in good faith, the latter can acquire it by long possession, because it has neither been stolen nor violently possessed; for the idea held by some of the ancients, that a piece of land or a place can be stolen, has now been exploded, and imperial const.i.tutions have been enacted in the interests of persons possessing immovables, to the effect that no one ought to be deprived of a thing of which he has had long and unquestioned possession.
8 Sometimes indeed even things which have been stolen or violently possessed can be acquired by usucapion, as for instance after they have again come under the power of their real owner: for by this they are relieved from the taint which had attached to them, and so become capable of usucapion.
9 Things belonging to our treasury cannot be acquired by usucapion. But there is on record an opinion of Papinian, supported by the rescripts of the Emperors Pius, Severus, and Antoninus, that if, before the property of a deceased person who has left no heir is reported to the exchequer, some one has bought or received some part thereof, he can acquire it by usucapion.
10 Finally, it is to be observed that things are incapable of being acquired through usucapion by a purchaser in good faith, or by one who possesses on some other lawful ground, unless they are free from all flaws which vitiate the usucapion.
11 If there be a mistake as to the ground on which possession is acquired, and which it is wrongly supposed will support usucapion, usucapion cannot take place. Thus a man's possession may be founded on a supposed sale or gift, whereas in point of fact there has been no sale or gift at all.
12 Long possession which has begun to run in favour of a deceased person continues to run on in favour of his heir or praetorian successor, even though he knows that the land belongs to another person. But if the deceased's possession had not a lawful inception, it is not available to the heir or praetorian successor, although ignorant of this. Our const.i.tution has enacted that in usucapion too a similar rule shall be observed, and that the benefit of the possession shall continue in favour of the successor.
13 The Emperors Severus and Antoninus have decided by a rescript that a purchaser too may reckon as his own the time during which his vendor has possessed the thing.
14 Finally, it is provided by an edict of the Emperor Marcus that after an interval of five years a purchaser from the treasury of property belonging to a third person may repel the owner, if sued by him, by an exception. But a const.i.tution issued by Zeno of sacred memory has protected persons who acquire things from the treasury by purchase, gift, or other t.i.tle, affording them complete security from the moment of transfer, and guaranteeing their success in any action relating thereto, whether they be plaintiffs or defendants; while it allows those who claim any action in respect of such property as owners or pledges to sue the imperial treasury at any time within four years from the transaction. A divine const.i.tution which we ourselves have lately issued has extended the operation of Zeno's enactment, respecting conveyances by the treasury, to persons who have acquired anything from our palace or that of the Empress.
t.i.tLE VII. OF GIFTS
Another mode in which property is acquired is gift. Gifts are of two kinds; those made in contemplation of death, and those not so made.
1 Gifts of the first kind are those made in view of approaching death, the intention of the giver being that in the event of his decease the thing given should belong to the donee, but that if he should survive or should desire to revoke the gift, or if the donee should die first, the thing should be restored to him. These gifts in contemplation of death now stand on exactly the same footing as legacies; for as in some respects they were more like ordinary gifts, in others more like legacies, the jurists doubted under which of these two cla.s.ses they should be placed, some being for gift, others for legacy: and consequently we have enacted by const.i.tution that in nearly every respect they shall be treated like legacies, and shall be governed by the rules laid down respecting them in our const.i.tution. In a word, a gift in contemplation of death is where the donor would rather have the thing himself than that the donee should have it, and that the latter should rather have it than his own heir. An ill.u.s.tration may be found in Homer, where Telemachus makes a gift to Piraeus.
2 Gifts which are made without contemplation of death, which we call gifts between the living, are of another kind, and have nothing in common with legacies. If the transaction be complete, they cannot be revoked at pleasure; and it is complete when the donor has manifested his intention, whether in writing or not. Our const.i.tution has settled that such a manifestation of intention binds the donor to deliver, exactly as in the case of sale; so that even before delivery gifts are completely effectual, and the donor is under a legal obligation to deliver the object. Enactments of earlier emperors required that such gifts, if in excess of two hundred solidi, should be officially registered; but our const.i.tution has raised this maximum to five hundred solidi, and dispensed with the necessity of registering gifts of this or of a less amount; indeed it has even specified some gifts which are completely valid, and require no registration, irrespective of their amount. We have devised many other regulations in order to facilitate and secure gifts, all of which may be gathered from the const.i.tutions which we have issued on this topic. It is to be observed, however, that even where gifts have been completely executed we have by our const.i.tution under certain circ.u.mstances enabled donors to revoke them, but only on proof of ingrat.i.tude on the part of the recipient of the bounty; the aim of this reservation being to protect persons, who have given their property to others, from suffering at the hands of the latter injury or loss in any of the modes detailed in our const.i.tution.
3 There is another specific kind of gift between the living, with which the earlier jurists were quite unacquainted, and which owed its later introduction to more recent emperors. It was called gift before marriage, and was subject to the implied condition that it should not be binding until the marriage had taken place; its name being due to the fact that it was always made before the union of the parties, and could never take place after the marriage had once been celebrated. The first change in this matter was made by our imperial father Justin, who, as it had been allowed to increase dowries even after marriage, issued a const.i.tution authorizing the increase of gifts before marriage during the continuance of the marriage tie in cases where an increase had been made to the dowry. The name 'gift before marriage' was, however, still retained, though now inappropriate, because the increase was made to it after the marriage. We, however, in our desire to perfect the law, and to make names suit the things which they are used to denote, have by a const.i.tution permitted such gifts to be first made, and not merely increased, after the celebration of the marriage, and have directed that they shall be called gifts 'on account of' (and not 'before') marriage, thereby a.s.similating them to dowries; for as dowries are not only increased, but actually const.i.tuted, during marriage, so now gifts on account of marriage may be not only made before the union of the parties, but may be first made as well as increased during the continuance of that union.
4 There was formerly too another civil mode of acquisition, namely, by accrual, which operated in the following way: if a person who owned a slave jointly with t.i.tius gave him his liberty himself alone by vindication or by testament, his share in the slave was lost, and went to the other joint owner by accrual. But as this rule was very bad as a precedent--for both the slave was cheated of his liberty, and the kinder masters suffered all the loss while the harsher ones reaped all the gain--we have deemed it necessary to suppress a usage which seemed so odious, and have by our const.i.tution provided a merciful remedy, by discovering a means by which the manumitter, the other joint owner, and the liberated slave, may all alike be benefited. Freedom, in whose behalf even the ancient legislators clearly established many rules at variance with the general principles of law, will be actually acquired by the slave; the manumitter will have the pleasure of seeing the benefit of his kindness undisturbed; while the other joint owner, by receiving a money equivalent proportionate to his interest, and on the scale which we have fixed, will be indemnified against all loss.
t.i.tLE VIII. OF PERSONS WHO MAY, AND WHO MAY NOT ALIENATE