GAI INSTITVTIONVM LIBER 2.40-50

40. Sequitur, ut admoneamus apud peregrinos quidem unum esse dominium; nam aut dominus quisque est aut dominus non intellegitur. quo iure etiam populus Romanus olim utebatur: aut enim ex iure Quiritium unusquisque dominus erat aut non intellegebatur dominus. sed postea diuisionem accepit dominium, ut alius possit esse ex iure Quiritium dominus, alius in bonis habere.

41. Nam si tibi rem mancipi neque mancipavero neque in iure cessero, sed tantum tradidero, in bonis quidem tuis ea res efficitur, ex iure Quiritium vero mea permanebit, donec tu eam possidendo usucapias: semel enim impleta usucapione proinde pleno iure incipit, id est et in bonis et ex iure Quiritium tua res esse, ac si ea mancipata vel in iure cesse esset.

43. Ceterum etiam earum rerum usucapio nobis conpetit, quae non a domino nobis traditae fuering, sive mancipi sint eae res sive nec mancipi, si modo eas bona fide acceperimus, cum crederemus eum, qui traderet, dominum esse. 44. Quod ideo receptum videtur, ne reerum dominia diutius in incerto essent, cum sufficeret domino ad inquirendam rem suam anni aut bienni spatium, quod tempus ad usucapionem possessori tributum est.

45. Sed aliquando etiamsi maxime quis bona fide alienam rem possideat, non tamen illi usucapio pricedit, velut si quis rem furtivam aut ui possessam possideat; nam furtiuam lex XII tabularum

usucapi prohibet, ui possessam lex Iulia et Plautia.

46. Item prouincialia praedia usucapionem non recipiunt.

47. Item olim mulieris, quae in agnatorum tutela erat, res mancipi usucapi non poterant, praeterquam si ab ipsa tutore auctore traditae essent: id ita lege XII tabularum cautum erat.

48. Item liberos homines et res sacras et religiosas usucapi non posse manifestum est.

49. Quod ergo uulgo dicitur furtiuarum rerum et ui possessarum usucapionem per legem XII tabularum prohibitam esse, non eo pertinet, ut ne ipse fur quiue per uim possidet, usucapere possit (nam huic alia ratione usucapio non competit, quia scilicet mala fide possidet), sed nec ullus alius, quamquam ab eo bona fide emerit, usucapiendi ius habeat.

50. Vnde in rebus mobilibus non facile procedit, ut bonae fidei possessori usucapio competat, quia qui alienam rem uendidit et tradidit, furtum committit; idemque accidit etiam, si ex alia causa tradatur. sed tamen hoc aliquando aliter se habet; nam si heres rem defuncto commodatam aut locatam uel apud eum depositam existimans eam esse hereditariam, uendiderit aut donauerit, furtum non committit; item si is, ad quem ancillae ususfructus pertinet, partum etiam suum esse credens uendiderit aut donauerit, furtum non committit; furtum enim sine affectu furandi non committitur. aliis quoque modis accidere potest, ut quis sine uitio furti rem alienam ad aliquem transferat et efficiat, ut a possessore usucapiatur.

51. Fundi quoque alieni potest aliquis sine ui possessionem nancisci, quae uel ex neglegentia domini uacet, uel quia dominus sine successore decesserit uel longo tempore afuerit: quam si ad alium bona fide accipientem transtulerit, poterit usucapere possessor; et quamuis ipse, qui uacantem possessionem nactus est, intellegat alienum esse fundum, tamen nihil hoc bonae fidei possessori ad usucapionem nocet, cum inprobata sit eorum sententia, qui putauerint furtiuum fundum fieri posse.

52. Rursus ex contrario accidit, ut qui sciat alienam rem se possidere, usucapiat, uelut si rem hereditariam, cuius possessionem heres nondum nactus est, aliquis possederit; nam ei concessum est usucapere, si modo ea res est, quae recipit usucapionem. quae species possessionis et usucapionis pro herede uocatur.

Gaius. Institutes. Book 2.40 - 52

§40. The next point to mention is that among foreigners there is only one kind of ownership; for a person is either held to be, or not to be. owner, and this rule was formerly in use amongst the Roman people, for a person was either owner, by the law of the quirites or was not looked upon as owner at all. But afterwards ownership became susceptible of division, in such a way that one person could be the owner by the law of the quirites, while another could hold it as part of his goods.

§41. For, if I have neither conveyed to you by the process of the copper and the scale a thing requiring to be so conveyed. nor surrendered it in court, but have only delivered it, the thing has thereby, indeed, become part of your goods, but it will remain mine, by the law of the quirites, until you have acquired it by use through the required period of possession; for when the period of acquisition by use is once completed, the thing will become completely yours in law, that is, it will be yours both as part of your goods, and by the law of the quirites, just as if it bad been formally convey or surrendered in court.

§ 42. The acquisition by use or movables is completed in one year, that of lands and of buildings in two years, and this is so provided by the Twelve Tables.

§ 43. But the acquisition by use of those things even which have been delivered to us by another person thin the owner, whether they are things requiring transfer by a formal conveyance or not, is available in our favour, if only we have received them bona fide, believing that he who delivered them was owner.

§ 44. This rule appears to have been adopted to prevent the ownership of things remaininq for a longer time in uncertainty than the period of one or two year;, which is required to entitle a possessor to acquire by use. this period affording a sufficient interval within which an owner can make inquiries after his property.

§ 45. But sometimes, although a person possesses the property of another in perfect good faith. yet no acquisition by use flows from that possession: as for example. if a person possesses a thing stolen I or taken by force; for the Twelve Tables forbids the acquisition by use of a thing stolen, and the Julian and Plautian law, that of a thing taken by force.

§ 46. So provincial land is not susceptible of acquisition by use.

§ 47. So also, before the Claudian law, such things belonging to a woman under agnate guardianship, as required transfer by the formal conveyance of copper and scale, could not be acquired by use, except when they had been delivered bv herself with the authority of her tutor, and this was so provided bv the Twelve Tables.

§ 48. So it is clear that free men, as well as sacred and religious things, cannot be acquired by use.

§ 49. When it is commonly said that the acquisition by use of things stolen or taken by force, is forbidden by the Twelve Tables, this does not mean that the thief, or he who gets possession of the thing by force, is unable to acquire by use (for another reason prevents the acquisition by use, viz., that, of course, his possession mala fide), but that no other person, even though he may have purchased from him in good faith has the right of acquiring by use.

§50 Whence, in respect of movables, it does not easily happen that a bona fide possessor can avail himself of acquisition by use. Because he who has sold and delivered another's property commits theft, and the same holds good if he have delivered the thing on any other ground. But yet this may sometimes be otherwise; for, if a thing lent or hired out to the deceased, or deposited with him, his been sold or given away by the heir, supposing it to be part of the inheritance, he does not commit theft; so. if he who has the usufruct of a female slave has sold or given away her offspring, believing it to belong to him, he does not commit theft; for theft is not committed without the intention of stealing. It may also happen in other ways, that a person may transfer to another property not his own, without its being infected with the vice of theft, so that the possessor may acquire it by use.

51. For a person may become possessed, without violence, of land belonging to another; when, for example, it is vacant through the negligence of the owner, or because the owner has died without a successor, or has been absent from it for a long time; in which cases, if it has been conveyed to another person who receives it bona fide, the possessor will be to acquire by use; and, although he who had taken the vacant possession knew that the land belonged to another, this does not interfere to prevent the bona fide possessor acquiring by use, for the opinion is disapproved of those who have thought that land can be the subject of theft.

52. Again, on the other hand, it may happen, that he who knows that he possesses the property of another, may yet acquire by use, as, for example, if anyone should possess himself of property belonging to an inheritance, of which the heir has not yet obtained possession, for in such a case the right of acquiring by use is conceded. provided the property in question is susceptible of acquisition by use. This kind of possession and acquisition by use is known as that "in the place of the heir".