The Institutes of Justinian Part 7

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

It sometimes happens that an owner cannot alienate, and that a nonowner can. Thus the alienation of dowry land by the husband, without the consent of the wife, is prohibited by the lex Iulia, although, since it has been given to him as dowry, he is its owner. We, however, have amended the lex Iulia, and thus introduced an improvement; for that statute applied only to land in Italy, and though it prohibited a mortgage of the land even with the wife's consent, it forbade it to be alienated only without her concurrence. To correct these two defects we have forbidden mortgages as well as alienations of dowry land even when it is situated in the provinces, so that such land can now be dealt with in neither of these ways, even if the wife concurs, lest the weakness of the female s.e.x should be used as a means to the wasting of their property.

1 Conversely, a pledgee, in pursuance of his agreement, may alienate the pledge, though not its owner; this, however, may seem to rest on the a.s.sent of the pledgor given at the inception of the contract, in which it was agreed that the pledgee should have a power of sale in default of repayment. But in order that creditors may not be hindered from pursuing their lawful rights, or debtors be deemed to be overlightly deprived of their property, provisions have been inserted in our const.i.tution and a definite procedure established for the sale of pledges, by which the interests of both creditors and debtors have been abundantly guarded.

2 We must next observe that no pupil of either s.e.x can alienate anything without his or her guardian's authority. Consequently, if a pupil attempts to lend money without such authority, no property pa.s.ses, and he does not impose a contractual obligation; hence the money, if it exists, can be recovered by real action. If the money which he attempted to lend has been spent in good faith by the wouldbe borrower, it can be sued for by the personal action called condiction; if it has been fraudulently spent, the pupil can sue by personal action for its production. On the other hand, things can be validly conveyed to pupils of either s.e.x without the guardian's authority; accordingly, if a debtor wishes to pay a pupil, he must obtain the sanction of the guardian to the transaction, else he will not be released. In a const.i.tution which we issued to the advocates of Caesarea at the instance of the distinguished Tribonian, quaestor of our most sacred palace, it has with the clearest reason been enacted, that the debtor of a pupil may safely pay a guardian or curator by having first obtained permission by the order of a judge, for which no fee is to be payable: and if the judge makes the order, and the debtor in pursuance thereof makes payment, he is completely protected by this form of discharge. Supposing, however, that the form of payment be other than that which we have fixed, and that the pupil, though he still has the money in his possession, or has been otherwise enriched by it, attempts to recover the debt by action, he can be repelled by the plea of fraud. If on the other hand he has squandered the money or had it stolen from him, the plea of fraud will not avail the debtor, who will be condemned to pay again, as a penalty for having carelessly paid without the guardian's authority, and not in accordance with our regulation. Pupils of either s.e.x cannot validly satisfy a debt without their guardian's authority, because the money paid does not become the creditor's property; the principle being that no pupil is capable of alienation without his guardian's sanction.

t.i.tLE IX. OF PERSONS THROUGH WHOM WE ACQUIRE

We acquire property not only by our own acts, but also by the acts of persons in our power, of slaves in whom we have a usufruct, and of freemen and slaves belonging to another but whom we possess in good faith. Let us now examine these cases in detail.

1 Formerly, whatever was received by a child in power of either s.e.x, with the exception of military peculium, was acquired for the parent without any distinction; and the parent was ent.i.tled to give away or sell to one child, or to a stranger, what had been acquired through another, or dispose of it in any other way that he pleased. This, however, seemed to us to be a cruel rule, and consequently by a general const.i.tution which we have issued we have improved the children's position, and yet reserved to parents all that was their due. This enacts that whatever a child gains by and through property, of which his father allows him the control, is acquired, according to the old practice, for the father alone; for what unfairness is there in property derived from the father returning to him? But of anything which the child derives from any source other than his father, though his father will have a usufruct therein, the owners.h.i.+p is to belong to the child, that he may not have the mortification of seeing the gains which he has made by his own toil or good fortune transferred to another.

2 We have also made a new rule relating to the right which a father had under earlier const.i.tutions, when he emanc.i.p.ated a child, of retaining absolutely, if he pleased, a third part of such property of the child as he himself had no owners.h.i.+p in, as a kind of consideration for emanc.i.p.ating him. The harsh result of this was that a son was by emanc.i.p.ation deprived of the owners.h.i.+p of a third of his property; and thus the honour which he got by being emanc.i.p.ated and made independent was balanced by the diminution of his fortune. We have therefore enacted that the parent, in such a case, shall no longer retain the owners.h.i.+p of a third of the child's property, but, in lieu thereof, the usufruct of one half; and thus the son will remain absolute owner of the whole of his fortune, while the father will reap a greater benefit than before, by being ent.i.tled to the enjoyment of a half instead of a third.

3 Again, all rights which your slaves acquire by tradition, stipulation, or any other t.i.tle, are acquired for you, even though the acquisition be without your knowledge, or even against your will; for a slave, who is in the power of another person, can have nothing of his own.

Consequently, if he is inst.i.tuted heir, he must, in order to be able to accept the inheritance, have the command of his master; and if he has that command, and accepts the inheritance, it is acquired for his master exactly as if the latter had himself been inst.i.tuted heir; and it is precisely the same with a legacy. And not only is owners.h.i.+p acquired for you by those in your power, but also possession; for you are deemed to possess everything of which they have obtained detention, and thus they are to you instruments through whom owners.h.i.+p may be acquired by usucapion or long possession.

4 Respecting slaves in whom a person has only a usufruct, the rule is, that what they acquire by means of the property of the usufructuary, or by their own work, is acquired for him; but what they acquire by any other means belongs to their owner, to whom they belong themselves.

Accordingly, if such a slave is inst.i.tuted heir, or made legatee or donee, the succession, legacy, or gift is acquired, not for the usufructuary, but for the owner. And a man who in good faith possesses a free man or a slave belonging to another person has the same rights as a usufructuary; what they acquire by any other mode than the two we have mentioned belongs in the one case to the free man, in the other to the slave's real master. After a possessor in good faith has acquired the owners.h.i.+p of a slave by usucapion, everything which the slave acquires belongs to him without distinction; but a fructuary cannot acquire owners.h.i.+p of a slave in this way, because in the first place he does not possess the slave at all, but has merely a right of usufruct in him, and because in the second place he is aware of the existence of another owner. Moreover, you can acquire possession as well as owners.h.i.+p through slaves in whom you have a usufruct or whom you possess in good faith, and through free persons whom in good faith you believe to be your slaves, though as regards all these cla.s.ses we must be understood to speak with strict reference to the distinction drawn above, and to mean only detention which they have obtained by means of your property or their own work.

5 From this it appears that free men not subject to your power, or whom you do not possess in good faith, and other persons' slaves, of whom you are neither usufructuaries nor just possessors, cannot under any circ.u.mstances acquire for you; and this is the meaning of the maxim that a man cannot be the means of acquiring anything for one who is a stranger in relation to him. To this maxim there is but one exception--namely, that, as is ruled in a const.i.tution of the Emperor Severus, a free person, such as a general agent, can acquire possession for you, and that not only when you know, but even when you do not know of the fact of the acquisition: and through this possession owners.h.i.+p can be immediately acquired also, if it was the owner who delivered the thing; and if it was not, it can be acquired ultimately by usucapion or by the plea of long possession.

6 So much at present concerning the modes of acquiring rights over single things: for direct and fiduciary bequests, which are also among such modes, will find a more suitable place in a later portion of our treatise. We proceed therefore to the t.i.tles whereby an aggregate of rights is acquired. If you become the successors, civil or praetorian, of a person deceased, or adopt an independent person by adrogation, or become a.s.signees of a deceased's estate in order to secure their liberty to slaves manumitted by his will, the whole estate of those persons is transferred to you in an aggregate ma.s.s. Let us begin with inheritances, whose mode of devolution is twofold, according as a person dies testate or intestate; and of these two modes we will first treat of acquisition by will. The first point which here calls for exposition is the mode in which wills are made.

t.i.tLE X. OF THE EXECUTION OF WILLS

The term testament is derived from two words which mean a signifying of intention.

1 Lest the antiquities of this branch of law should be entirely forgotten, it should be known that originally two kinds of testaments were in use, one of which our ancestors employed in times of peace and quiet, and which was called the will made in the comitia calata, while the other was resorted to when they were setting out to battle, and was called procinctum. More recently a third kind was introduced, called the will by bronze and balance, because it was made by manc.i.p.ation, which was a sort of fict.i.tious sale, in the presence of five witnesses and a balance holder, all Roman citizens above the age of p.u.b.erty, together with the person who was called the purchaser of the family. The two first-mentioned kinds of testament, however, went out of use even in ancient times, and even the third, or will by bronze and balance, though it has remained in vogue longer than they, has become partly disused.

2 All these three kinds of will which we have mentioned belonged to the civil law, but later still a fourth form was introduced by the praetor's edict; for the new law of the praetor, or ius honorarium, dispensed with manc.i.p.ation, and rested content with the seals of seven witnesses, whereas the seals of witnesses were not required by the civil law.

3 When, however, by a gradual process the civil and praetorian laws, partly by usage, partly by definite changes introduced by the const.i.tution, came to be combined into a harmonious whole, it was enacted that a will should be valid which was wholly executed at one time and in the presence of seven witnesses (these two points being required, in a way, by the old civil law), to which the witnesses signed their names--a new formality imposed by imperial legislation--and affixed their seals, as had been required by the praetor's edict. Thus the present law of testament seems to be derived from three distinct sources; the witnesses, and the necessity of their all being present continuously through the execution of the will in order that the execution may be valid, coming from the civil law: the signing of the doc.u.ment by the testator and the witnesses being due to imperial const.i.tutions, and the exact number of witnesses, and the sealing of the will by them, to the praetor's edict.

4 An additional requirement imposed by our const.i.tution, in order to secure the genuineness of testaments and prevent forgery, is that the name of the heir shall be written by either the testator or the witnesses, and generally that everything shall be done according to the tenor of that enactment.

5 The witnesses may all seal the testament with the same seal; for, as Pomponius remarks, what if the device on all seven seals were the same?

It is also lawful for a witness to use a seal belonging to another person.