4. USUCAPION AS PURCHASER
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40 BOOK FORTY-ONEIUSUCAPION AS PURCHASER be usucapted that it be possessed. Now if the head of household should die in captivity, since such persons are treated as dead from the moment of their capture, the son can be said to have possessed for himself and to have usucapted. 45 PAPINIAN, Replies, book 10: Prescription by long possession is not conceded by the law of nations for the acquisition of public land. This is the case if, when the building which he had erected on the seashore is totally demolished (perhaps he pulled it down or abandoned it), a man opposes another subsequently building and occupying in the same place, or again, if a person, because he alone has fished in a reach of a public river for some years, refuses someone else the same right. 1. Suppose that after the master 's death, a slave of his inheritance should begin to hold a thing by way of peculium; usucapion will first commence upon the acceptance of the inheritance; for how could there be usucapion of what the deceased did not previously possess? 46 HERMOGENIAN, Epitome of Law, book 5: A man usucapts in satisfaction a thing which he receives in respect of a debt; and not only the actual thing due but anything given in respect of a debt can be usucapted under this head. 47 PAUL,Neratius, book 9: If my procurator should buy and take a thing in my name without my knowledge, then, although I possess it, I will not usucapt it; for it is accepted that usucapion in ignorance is applicable only to things in a peculium. 48 PAUL,Handbook, book 2: If I deliver something to you, thinking that I am under a duty to do so, usucapion will follow only if you also think that it is due to you. It would be another matter if I thought myself liable on a sale and therefore delivered it to you; for, in this case, if there be no prior purchase, there can be no usucapion as purchaser. The ground of distinction is this: in other cases of performance, we look to the time of performance, and when I stipulate, it does not matter whether I know the thing to belong to someone else or not; it is enough that I think the thing yours when you make performance; but in the case of sale, we consider both the time of contract and the time of performance; and a nonpurchaser cannot usucapt as purchaser or in satisfaction as in other contracts. 49 LABEO,Plausible Views, Epitomized by Paz~l,book 5: If something be stolen, it cannot be usucapted until it has returned to the control of the owner. PAUL:No, quite the contrary; for if you take away what you gave me in pledge, it will become a stolen thing; but as soon as it comes back into my control, it can be usucapted. USUCAPION AS PURCHASER 1 GAIUS,Provincial Edict, book 6: A possessor who submits to a judicial assessment of the value of the thing begins to possess as a purchaser. 2 PAUL,Edict, book 54: A person possesses as purchaser who genuinely purchases a thing, and it is not sufficient for him simply to be of the belief that he possesses as purchaser; there must be an underlying purchase. Now if, thinking that I have to, I deliver a thing to you who are unaware of my belief, you will usucapt the thing. Why, then, should you not usucapt when I think that I have sold you what I deliver to you? It is because in other contracts the time of delivery alone suffices so that if in full knowledge I stipulate for a thing belonging to another, I will usucapt it if at the time of delivery I believe it now to belong to the transferor; but in the case of sale, we look also to the time of contracting so that a person must both have purchased in good faith and taken delivery in good faith. 1. The grounds of possession and of usucapion are distinct; for a man may be rightly held to have purchased, but in bad faith; so that one who knowingly buys what belongs to another possesses it as purchaser although he does not usucapt it. 2. If a sale be made subject to a condition, the purchaser cannot usucapt while the condition is pending. The same applies if he thinks that it has been...