2. ACQUISITION AND LOSS OF POSSESSION
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BOOK FORTY-ONEILOSS OF POSSESSION ACQUISITION AND LOSS OF POSSESSION 1 PAUL, Edict, book 54: Possession is so styled, as Labeo says, from "seat," as it were "position," because there is a natural holding, which the Greeks call K(YTOX+ by the person who stands on a thing. 1. The younger Nerva says that the ownership of things originated in natural possession and that a relic thereof survives in the attitude to those things which are taken on land, sea, or in the air; for such things forthwith become the property of those who first take possession of them. In like manner, things captured in war, islands arising in the sea, and gems, stones, and pearls found on the seashore become the property of him who first takes possession of them. 2. Now we can acquire possession in person. 3. A madman, however, and a pupillus acting without his tutor's authority cannot begin to possess because they have not the intention to hold, whatever their physical contact with the thing, as when one places something in the hand of a sleeping man. A pupillus, though, who acts with his tutor's authority does take possession. Ofilius, indeed, and the younger Nerva say that a pupillus can commence possession even without his tutor's authority, since the issue is one of fact, not of law; this view may be accepted if the young people be of such an age that they have understanding. 4. Should a husband yield up possession to his wife by way of gift, the general view is that she is now in possession, since an issue of fact cannot be invalidated by the civil law; and what point would there be in saying that the wife is not in possession in view of the fact that the husband lost possession as soon as he decided no longer to possess? 5. Similarly, we acquire possession through a slave or son in our power and, indeed, in the case of those things which they hold in peculium, we do so, even without being aware of the fact; this was the view of Sabinus, Cassius, and Julian, since those are deemed to possess with our consent whom we have allowed to have a peculium. In consequence, in relation to the peculium , even an infant or lunatic acquires possession and may usucapt, so also the heir, if a slave, part of the inheritance, buys something. 6. Furthermore, we acquire possession through someone whom we possess in good faith, whether he be in fact a freeman or the slave of another. But if we possess him in bad faith, I do not think that we can acquire possession through him; at the same time, one in the possession of another cannot acquire possession either for his true owner or for himself. 7. We acquire possession also through a slave owned in common as we would through one owned exclusively , any given owner acquiring possession alone, if the slave have in mind to acquire only for him, as would be the case also for the acquisition of ownership. 8. We can also possess through a slave whom we have in usufruct, just as we acquire through his labor; and it is not to the point that we do not possess him; for neither do we possess a son-in-power. 9. However, the person through whom we seek to possess must be such as to have an understanding of possession. 10. Hence, if you send a lunatic slave so that you may take possession, you are in no way regarded as having taken possession. 11. If, though, you send an impubes, you commence possession,just as a 16 BOOK FORTY-ONE/LOSS OF POSSESSION 2 ACQUISITION AND LOSS OF POSSESSION 1 PAUL, Edict, book 54: Possession is so styled, as Labeo says, from "seat," as it were "position," because there is a natural holding, which the Greeks call KaToXi] by the person who stands on a thing. 1. The younger Nerva says that the ownership of things originated in natural possession and that a relic thereof survives in the attitude to those things which are taken on land, sea, or in the air; for such things forthwith become the property of those who first take possession of them. In like manner, things captured in war, islands arising in the sea, and gems, stones, and pearls found on the seashore become the property of him who first takes possession of them. 2. Now...