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BOOK FORTY-THREEIPRECARIUM WITHDRAWAL OF NOTICE 1 ULPIAN,Edict, book 71: The praetor says: "Where such a one has the right to prohibit something from being done against his will, the notice against it will hold good. Otherwise, I declare the notice withdrawn." 1. Under this title withdrawals are proposed . 2. And the praetor's words show that the withdrawal is only made where the notice does not hold good and that the praetor wished the notice to hold good where the person serving it has the right of prohibiting something from being done against his will. But whether or not security has meanwhile been given, the declaration of withdrawal only applies where a notice did not hold good. Plainly, if security is given, withdrawal is not necessary. 3. The right of serving notice against a new work belongs to the person who has ownership or a servitude. 4. Julian also holds that the usufructuary has the right of vindicating servitudes, so that it follows that he may serve notice against a new work on his neighbor, and withdrawal will be valid. But if he serves notice on the owner of the lands himself, the withdrawal will be void. For he cannot bring an action against the owner, as he can against a neighbor, to the effect that the owner has no right to build higher without his consent. But if his doing so makes the usufruct worse, he must claim for the usufruct. Julian says the same of others to whom some servitude is owed by a neighbor. 5. And Julian writes that it is only fair that a person who has accepted a farm by way of pledge should be granted the right to claim a servitude. 1 ULPIAN,Institutes, book 1:Precarium is what is conceded to one who asks for it for his use for as long as the person who made the concession suffers it. 1. This kind of liberalitv derives from the law of nations. 2. And it differs from a eift in that some- one who makes a gift does it on terms of not getting it back, whereas someone who makes a concession by precarium gives it expecting to get it back when he chooses to dissolve the precarium. 3. It is similar to a loan for use. For anyone who makes such a loan does so not to make the thing lent the recipient's, but so as to let him use it. 2 ULPIAN, Edict, book 71: The praetor says: "In the case of the property in question, you are to restore to such a one what you have from him by precarium, or have fraudulently arranged no longer to have." 1. This interdict is for restitution. 2. And it is based on natural equity; for it lies in favor of anyone wishing to revoke the precarium. For it is in accordance with natural equity that you should make use of my liberality no longer than I wish and that I should be able to revoke it when I change my mind. So when something has been asked for by precarium, we may employ not only this interdict but also an actio praescriptis verbis which is based on good faith. 3. To have by precarium is held to be having secured possession either of a tangible object or of a right solely by reason of having asked for a favor and receiving it, so as to have possession or permitted use, 3 GAIUS,Provincial Edict, book 25: for instance, if you should have asked me by precarium for permission to cross my farm on foot or with cattle, or to have a water drip from your roof over the courtyard of my house, or a beam let into my wall. 4 ULPIAN, Edict, book 71: It is settled that a request for precarium applies to movable things also. 1. We should remember that anyone who has something by precarium also possesses it. 2. One who has asked by precariuwz will not in every case be liable under this interdict, but one who holds by precarium will. For it may happen that someone has something by precarium without having asked for it. Take the case of my slave having asked. He has acquired the precarium for me. Or someone else BOOK FORTY-THREE/PRECARIUM 25 WITHDRAWAL OF NOTICE 125 1 ULPIAN, Edict, book 71: The praetor says: "Where such a one has the right to prohibit something from being done against...


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