4. TO FORBID THE USE OF FORCE AGAINST SOMEONE SENT TO TAKE POSSESSION
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84 BOOK FORTY-THREEIT0 FORBID THE USE O F FORCE things for which security has been given, but not for the rest. 2 PAUL, Edict, book 63: It is different if anything has subsequently accrued to a legacy ; for those who give security for a legacy are liable for the whole of it. 1. The praetor's words "if it is not for the bonorum possessor to give security" we understand to apply if he was prepared to give security. Consequently, he is not obliged to give security, but must not by default obstruct the claimant. 2. Whoever does not make restitution under this interdict is to be condemned to pay the interest. 3. If the legatee was content with a promise of restitution, the interdict should be granted. The same should be said if the legatee refused the furnishing of a cautio to him by pledges. 4. If the legatee prevented security from being given, he is bound by the interdict even without a cautio. But if it should happen to have been the fault of the legatee that no security was given, but at the time the interdict is issued he is prepared to accept security, the interdict does not lie unless security is given. Again, if it was the fault of the bonorum possessor that he did not give security, but he is now prepared to furnish a cautio, the interdict holds. For regard is paid to the time of issue of the interdict. TO FORBID THE USE OF FORCE AGAINST SOMEONE SENT TO TAKE POSSESSION 1 ULPIAN, Edict, book 72: The praetor says: "If anyone should fraudulently prevent a person from obtaining bonorum possessio by my authority, or the authority of the person who had the jurisdiction, I will grant an action infactum against him for the value of the property on account of which missio in possessionem was authorized." 1. It was with the greatest foresight that the praetor provided this edict. For it would be pointless for him to authorize missio in possessionem to safeguard property unless he could protect those sent and coerce those who prevented them from coming into possession. 2. This edict is general; for it applies to all who are sent to take possession by the praetor. For it is right that the praetor should protect all whom he has himself sent to take possession. And those who are sent to take possession, whether for the purpose of safeguarding property or legacies, or in the name of an unborn child, have an actio in factum under this edict if owners or others should prevent them. 3. This actionholds good not onlywhen someone has prevented somebody from coming into possession but also when somebody has been driven out of possession; nor is it necessary that the person preventing should have done so by force. 4. If somebody has kept someone else from possession because he thought the property to be his own, or pledged to him, or certainly not to be the debtor's, it followsthat he will not be liable under this interdict. 5. The words "for the value of the property on account of which missio in possessionem was authorized" are serviceable to the creditor in that the value to him of having possession is the amount the person preventing him from possession will be condemned to pay. Consequently, if he is sent to take possession on false pretenses or upon a false claim, or can be removed by a defense, this edict should avail him nothing, because he was sent to take possession without cause. 6. It is settled that a pupillus and lunatic cannot be liable under this edict, because they lack steady purpose. But we must understand by a pupillus someone who is not capable of fraud. If he is already capable of fraud, the opposite must be held. So if a tutor acts fraudulently, we shall grant an action against the pupillus, provided that the tutor is solvent. But Julian writes that a tutor can himself be sued also. 7. If someone is prevented from taking possession at the wish of a master or father, an action will be granted against [these latter] themselves, as having done this through others. 8. It should be known that this action will be available within a year and not subsequently, with the exception of when someone is sent to take possession to safeguard legacies. 84 BOOK FORTY-THREE/TO FORBID THE USE OF FORCE things for which security...