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Mistake of Law in Usucapion

Published online by Cambridge University Press:  16 January 2009

David Daube
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Extract

A red herring has been drawn over this text. For one and three-quarter millennia no particular difficulty was felt about usucapion where the usufructuary of a female slave sells the offspring in the belief that it belongs to him—a belief which is false since the child of an ancilla is not treated as fruit. Some thirty years ago, however, Siber declared that usucapion is impossible because of error juris. Several passages explain that bona fides resting on error juris is not good enough for usucapion, and in this case—Siber holds—the buyer is wrong about the rules governing the offspring of a slave woman in usufruct. In Siber's opinion, Gaius intends only to point out that the offspring is not res furtiva, but he does not admit usucapion.

Type
Research Article
Information
The Cambridge Law Journal , Volume 16 , Issue 1 , April 1958 , pp. 85 - 92
Copyright
Copyright © Cambridge Law Journal and Contributors 1958

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References

1 Römisches Recht, Vol. 2, 1928, 91, n. 32.

2 Das Römische Privatrecht, Vol. 1, 1955, 357, n. 33.

3 Labeo, Vol. 2, Part 1, 2nd ed., 1895, 496 et seq.

4 Siber accepts the inscription in the Digest, which says Paul. But see Lenel, , Palingenesia Juris Cioilis, 1889, Vol. 2, 140.Google Scholar

5 Text-Book of Roman Law, 2nd ed., 1932, 244.

6 D.41.4.2.16, cited by Buckland, loc. cit., n. 3.

7 From some date in the post-classical period, a gift by the paterfamilias to one in his potestas is confirmed by the former's death; but, as demonstrated by Siber (Zeitschrift der Savigny-Stiftung 53, 1933, Rom.Abt., 99 et seq.), classical law does not know this rule. Even if one should disagree with Siber, in the cases discussed in Vat.Fr. 296 and parallels, for some reason or other the gift remains void even on the father's death—which is all that matters for our purposes.

8 D. 41.6.4, where also originally a res mancipi must have been concerned, otherwise civil ownership would pass at once: Siber, , Römisches Recht, Vol. 2, 1928, 88Google Scholar, n. 23.

9 Op. cit. 86, n. 12, Zeitschrift der Savigny-Stiftung 53, 1933, Rom. Abt., 101 et seq.

10 I should like to thank Professor P. G. Stein, of Aberdeen, for his valuable criticisms.