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60 BOOK FORTY-TWO IMISSIO IN POSSESSIONEM 9 MARCIAN, Institutes, book 15: There can be surrender to bankruptcy not only in but also without legal process. A declaration thereof by messenger or by letter suffices. THE GROUNDS ON WHICH MISSIO IN POSSESSIONEM IS GRANTED 1 ULPIAN,Edict, book 12: There are virtually three grounds on which people are granted missio in possessionem: to preserve the cause, to preserve legacies, and on behalf of an unborn child. For, where no cautio is given in respect of threatened damage , there is no general missio in possessionem, but only into the thing from which damage is apprehended. 2 ULPIAN,Edict, book 5: The praetor says: "I will authorize entry on the assets of one who gives a verbal guarantor for appearance at the trial and then does not enter an appearance and is undefended." 1. A person fails to make an appearance who contrives that his opponent does not have access to him; hence, the praetor will order seizure of the assets of a defendant in hiding. 2. What if he be not in hiding but is absent and is undefended? Should he be treated as not entering appearance? 3. A person can be regarded as making a defense who does not disadvantage his opponent's cause in any way by his absence. 4. The term "defended" is given a wide interpretation so that it is not enough that he enter a defense if he does not persist in it, and equally it will not go against him if, having previously failed to do so, he does now present a defense. 3 ULPIAN,Edict, book 59: Julian discusses this question: The father of a pupillus owned a thing in common with Titius, and the pupillus is unrepresented in the action to divide the common holding, and there is nothing in respect of which judgment should be delivered by reason of the person of the father; should the father's assets be sold or should they be taken into possession for the preservation of the thing? Julian says that if the father has taken any fruits of the thing or caused any deterioration in it, his property is to be sold; but if there be no ground for sale of the father's assets, those of the pupillus are to be taken into possession. But Marcellus noted that it is grossly unfair that one who has no dealing with the pupillus must await his coming of age. This view carries conviction;hence, when the transaction derives from the person of the father, it is to be said that one does not await the adulthood of the pupillus. 1. It can be said that there is a dealing with a pupillus when the transaction is effected with his slave; for the pupillus can be sued in the action on the peculium. Hence, it is to be accepted that the same applies in respect of all transactions for which actions are granted against a pupillus. Especially is this so where the slave has appropriated the thing to his master's benefit or acted on his direction or if it be possible to bring the action for a business manager's conduct against the pupillus. 2. My view is that even when a transaction is entered into with a tutor on which an action is =anted acainst u the pupillus, this edict is still operative as though the transaction was with the pupillus. 3. If a pupillus be heir to someone and, by reason thereof, be liable to discharge legacies, we must consider whether this edict is applicable; and the better view is that, as Marcellus writes, the assets of the ward can be taken into possession, and it is for the election of the creditors of the inheritance to choose their course of action; an impubes is regarded as entering into a transaction when he accepts an inheritance. 4 PAUL,Edict, book 58: So also one who meddles in it. 5 ULPIAN,Edict, book 59: This edict, however, is operative whenever a pupillus is undefended by anybody, whether tutor or curator and whether or not the pupillus has a tutor. But if there be anyone prepared to defend the pupillus, there will be no such possession. 1. It is for the praetor to be satisfied by the plaintiff that a pupillus is not defended before he allows possession of the assets of the pupillus. Such a demonstration to the praetor is to be made as follows...