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The Restoration of Fruits by the Bona Fide Possessor

Published online by Cambridge University Press:  16 January 2009

David Daube
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Extract

The following remarks are intended to show that there exists no irreconcilable conflict between C. Just. 3.32.22 and C. Theod. 4.18.1. This is a strictly limited purpose, and the author does not propose to attempt any further conclusions as to the complicated history of the restoration of fruits in the rei vindicatio. It may be well to quote the two texts that form the subject of this article.

Type
Research Article
Information
The Cambridge Law Journal , Volume 9 , Issue 1 , March 1945 , pp. 31 - 43
Copyright
Copyright © Cambridge Law Journal and Contributors 1945

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References

1 Teoria del Possesso, 1871, pp. 126 ff.Google Scholar The pretent writer has found it impossible to get hold of this book (or, for that matter, of Alibrandi's Opere in which it is included).

2 Eigentumserwerbsarten (in Glück, , Pandekten, 41–42), 1887, pp. 559 ff.Google Scholar

3 Czyhlarz himself did not declare it interpolated but connected it with hereditatis petitio: see below, p. 42.Google Scholar

4 It is not considered, for instance, by Sohm-Mitteis-Wenger, , Institutionen, 17th ed., 1933, p. 313Google Scholar, n. 12. The authors seem to have missed the various discussions of C. Theod. 4.18.1: they mention only C. Just. 3.32.22, without, apparently, being aware that this text is under a cloud.

5 See Girard, , Manuel de Droit Romain, 7th ed., 1924, pp. 338 f.Google Scholar; Buckland, , Text-Book of Roman Law, 2nd ed., 1932, pp. 225 f.Google Scholar; De Zulueta, , Digest 41.1 and 2, 1922, p. 35 (on Dig. 41.1.40, Afrioanus).Google Scholar

6 Op. cit., p. 338, n. 4.Google Scholar

7 Op. cit., p. 563.Google Scholar

8 Handlexikon, 9th ed., 1907, p. 258Google Scholar: sich bemächtigen, in Besitz nehmen.

9 The original sense of incubare, ‘to lie in, upon,’ is noticeable a so in all non-legal texts where the verb occurs. In Floras 1.10.2, according to Lewis, & Short, s.v. incuboGoogle Scholar, the verb means ‘to take up a position at.’ Here, one might perhaps think, is an exception, the emphasis lying on the seizing of a thing rather than on the resting upon a thing. But the passage in question runs: Hunc tamen, quamris et armis et fame urgueret occupatoque Ianiculo in ipsis urbis faucibus incubaret, sustinuit, reppulit. Of this, the most natural rendering seems to be that given by Forster, in The Loeb Classical Library, 1929Google Scholar: Although he (Porsenna) pressed hard upon them (the Roman people) both with arms and with famine, and, having seized the Janiculum, held the very approach to the city, they withstood and repelled him … Incubare here means ‘to hold,’ ‘to be posted at,’ not ‘to take up a position at.’ Comp. the very similar use of incubare in Florus 2.6.57: Sic factum est ut inhaerentem atque incuba tem Italiae extorqueret Annibalem, He (Scipio) thus (by descending on Africa itself) succeeded in making Hannibal release his grip upon Italy, to which he was still clinging and over which he still brooded. On a few texts with the perfect incubui, see below, p. 38, n. 14.Google Scholar

10 An abridged version appears in C. Just. 1.11.5. It does not contain the passage with the incubatores.

11 It is probably not permissible to press the words of this speech as one does those of a text of Julian. If it were, one might say that the wicked relative can plunder the fruits and ravage the fields without any fear of the day of reckoning because, though in reality he is an incubator, an ‘unjust holder,’ yet so long as the Roman court has not decided against him, he holds on the basis of an enactment (assuming the proposed legislation is carried through). Surely, a person who holds on the basis of an enactment must, in law, be treated as a bona fide possessor; and the bona fide possessor of an inheritance, under the senatusconsultum Juventianum, is liable only for enrichment. However, Fronto most likely does not think of these subtleties, but simply means that the relative has no intention ever to present himself for the lawsuit at Rome, feels perfectly safe in Asia and wastes the true heir's property just as he likes.

12 See, however, below, p. 38, n. 14. on an alternative rendering of this passage.

13 Heumann-Seckel'B rendering should be altered into unrechtmässig besitzen, zurückhalten.

14 Professor Cary, to whom the author submitted this conclusion with a request for criticism, suggests that Facciolati and Lewis & Short may be wrong altogether in making incubui an alternative perfect of incubare; and that most probably incubavi is the only perfect of incubare, incubui always belonging to incumbere. Passages like Horace Od. 1.3.31 (saying that after the theft of the fire from Olympus, a multitude of unheard of diseases terris incubuit, ‘fell upon the lands’), Ammianus 24.8.6 (referring to a rumour Persas nobis viantibus incubuisse, ‘that the Persians had fallen upon us on the way’) and Lucanus 9.57 (where a widow speaks of incubuisse viro, of ‘having fallen upon the corpse of her husband’) seem to the author to support Professor Cary's view: the first two are listed under incubare by Facciolati, the third by Facciolati and Lewis & Short, but they all look like belonging to incumbere, in all of them the verb expresses a violent falling upon a thing rather than n prolonged resting upon a thing. Virgil Aen. 6.610 might perhaps create a difficulty, aut qui diritiis soli incubuere repertis, nec partem posuere. suis. Yet, at a pinch, one could replace the rendering given above under (2) by ‘or those who found riches and fell upon them alone (not: retained them alone), instead of sharing them with their relatives and friends.’ Professor Cary observes that incubuere is balanced by posuere, which clearly denotes a single act, not a state of rest. By analogy, therefore, incubuere should also designate a single act, ‘they fell upon’ (Virgil, Professor Cary adds, had a fine sense of symmetry). However, the present writer is not competent to pronounee on a question nf philology.

15 See Festus, on vindiciaeGoogle Scholar: … fructus duplione damnum decidito;Paul. Sent. 5.9.2: ex die accepti iudicii dupli fructus computantur; and Pernice, , Labeo, vol. II, part I. 2nd ed., 1895, p. 349, n. 4.Google Scholar

16 It may be repeated that by ‘new’ or ‘an innovation’ is here meant ‘new as compared with C. Just. 3.32.22.’ The author does not deny the possibility of C. Theod. 4.18.1 being a mere confirmation of rules that had come into existence before 369, and even the twofold payment by the mala fide possessor for the time before litis contestatio may be older than the enactment. What in decisive in this connection is that this provision at least is later than C.Just. 3.32.22.

17 See Pernice, , loc. cit.Google Scholar

18 Op. cit., pp. 583 f.Google ScholarGirard, , op. cit., p. 338Google Scholar, n. 4, repeats the claim but gives no arguments.

19 This is leaving out of account the total elimination of the second half of C. Theod. 4.18.1. concerning plaintiffs who are unable to prove their case.

20 It was shown above, however, that those who adhere to this theory have in mind a different interpretation of the relevant clause in C. Theod. 4.18.1, taking incubare as meaning ‘to seize’ instead of ‘to retain.’

21 La Responsibiliya del ‘Bonae Fidei Possessor,’ Bulletino dell' Istituto di Dirillo Romano, 26, 1913. p. 249.Google Scholar He says that C. Theod. 4.18.1, giving the bona fide possessor for good; all fruits before. litis cotestalio, reeurs in C. Just. 7.51.2, alterata, ma non a questo riguardo. The supposed conflict between C. Theod. 4.18.1 and C. Just. 3.32.22 is noted; at p. 258, n. 2.

22 Op. cit., p. 356.Google Scholar

23 Op. cit., p. 256.Google Scholar

24 Codex Iustinianus, ed. ster., 1915.Google Scholar

25 Op. cit., p. 563.Google Scholar The suggestion is adopted by Girard, , loc cit.Google Scholar Needless to add, Czyhlarz wrote long before Albertario claimed (op. cit., p. 275)Google Scholar that, even under the senatusconsultum Juventianum, a bona fide possessor was not bound in classical law to restore fruits received before litis contestatio.

26 Mala fide possidens de proprietate victus extantibus fructibus vindicatione, consumptis vero condictione conventus, horum restitutioni parere compellitur. Czyhlarz, , op. cit., p. 563Google Scholar, n. 62, adduces this text in support of his view that C. Just. 3.32.22 cannot have been applicable to rei vindicatio in 294Google Scholara.d. But, in the first place, as observed in the text, it may be that C. Just. 3.32.22 originally did mention the various actions to be used for claiming the fruits. In the second place, even if it did not, there is nothing in it that contradicts C. Just. 4.9.3. We must not press the words cumipsare: they do not neeessarily mean that there are to be no separate actions for the fruits. In the third place, it is by no means certain whether C. Just. 4.9.3 is intended as a serious requirement of a special vindicatio for extant fruits, a special condictio for consumed.

27 Op. cit., p. 226Google Scholar