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II.

Leges

BOOK could never be capable of usucapion unless it had returned to the possession of the original owner'. This applied to moveable property only, and the Julie and principle was subsequently extended to res vi possessa by the leges Julia and Plotia, passed about the year U.c. 665, whereby persons violently dispossessed of lands and immoveables, might make good their claim at any distance of time.

Plotia.

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The very short time allowed for usucapion might be sufficiently adapted for the state of society when the Twelve Tables were published; in process of time, however, it began to produce injustice, and to lead to frauds: accordingly about the year A.D. 220 we find both Ulpian and Paulus, who were contemporaries, speaking of longe possessionis prærogativas, and longa possessionis præscriptio1; and which Paulus says was, with regard to immoveable property, inter præsentes decennii inter absentes vicennii spatio continuo. This is the præscriptio longi temporis which had been gradually arising.

Præscriptio est exceptio qua is qui rem longo tempore possederat, sese adversus dominum tuebatur; a plea whereby he who possessed a thing for a long time defended himself against the owner of the property. The old usucapion was enacted by the Twelve Tables, and therefore was a matter of strict law; the extended period of præscriptio must at first have rested upon the interpretationes prudentum, aided by the equity of the Prætor, and so continued till Justinian settled the law. Vetustas, says Paulus, pro lege habetur minuendarum scilicet litium causa. Long and uninterrupted possession, or usage, established the title of the bona fide possessor, i.e. he who had received the thing as a gift, or as a purchase from one whom he believed to be the proprietors. But an error in law is fatal,

1 D. XLI. 3. 4. 6.
3 D. XLIII. 19. 5. 3.
5 R. S. V. 2. 3.

7 D. XXXIX. 3. 2.

2 D. XLI. 4. 33. 2.
4 D. XVIII. I. 76. 1.

6 Hein. El. 438.

8 D. L. 16. 109.

V.

alteration.

because juris ignorantia non prodest'. Justinian CHAP. finally abolished all distinction between usucapion and prescription, as well as between res mancipi and nec mancipi, and decreed that the longi tem- Justinian's poris possessio should be fixed at three years in things moveable, and ten years in things immoveable, if the owner were in civitate, and twenty if he were absent; and he made the law of prescription to apply equally to incorporeal as to corporeal property2.

cessary to

To make a title good by prescription there must What nebe an original bona fide possession3, founded on a make a justus titulus, and the possession must be continu- good title. ous for the period required by law.

Usurpatio was the interruption of possession be- Usurpatio. fore the necessary time for establishing the prescriptive right was accomplished. During usurpatio the time counts if the claim of the usurper be bad 5.

temporis.

There was also the præscriptio longissimi tem- Longissimi poris, of thirty, forty, and a hundred years. Thirty years applied to cases of mala fides, and defective titles; forty years to public property, or that of the emperor; and an hundred years to the church'.

ableness of

The civil law of any state might justly be said Reasonto be very imperfect that possessed not these sta- the Law. tutes of limitation. The reason assigned for them by the Romans was ne rerum dominia in incerto essent; and no one had a right to complain who thus lost his property, for videtur alienare qui patitur usucapiR.

2. Donatio, a gift, is classed among the civil Donatio, definition. modes of acquiring property: Donatio est liberalitas in accipientem nullo jure cogente collata; when one from mere liberality bestows any thing on another,

1 D. XLI. 3. 31.

3 I. II.

6. pr.; D. XLI. 4. 2.

5 D. XLI. 6. 2.

7 Nov. 9.

9 Hein. El. 455.

2 C. VII. 31; C. VII. 33. 12.

4 D. XLI. 3. 5.

6 C. VIF. 39.

8 D. L. 16. 28.

BOOK not being compelled to do so by law, or induced as the requital of services.

II.

Inter vivos.

How ex

ecuted.

When revocable.

Mortis

causa.

Donations were, 1. Inter vivos. 2. Mortis causa. 3. Propter nuptias.

Justinian decreed that a donatio inter vivos was a civil mode of acquiring property. The gift was complete as soon as the donor had expressed his intention either verbally or in writing', and he was bound to make the delivery. If the gift exceeded 500 solidi in value it must be registered3. To make a gift perfect there must be the consent of the donor and donee; the donor must have the power of alienation, and the thing itself must be that which is capable of transfer.

As a general rule a donatio inter vivos unaccompanied by any condition was irrevocable, and it is so absolutely by the law of England; but the Civil law makes it revocable in the following cases: First, if the donor disposed of more than three-fourths of his estate, and did not leave a clear fourth part to the heir; secondly, if any condition were annexed, and the donee failed to fulfil it; thirdly, if the donee was guilty of insignis ingratitudo towards the donor, as where he injured him by fraud or slander; fourthly, the gift not being duly registered; and lastly, in the case of the patronus who had made over his estate to his libertus, having no children, if he had a child born afterwards the gift was thereby rescinded by a constitution of Constantine'. Though the justice of this has been questioned it comes within the rule that the heir-presumptive must give way to the heir-apparent.

A donatio mortis causa is thus defined by Definition. Marcianus: Mortis causa donatio est cum qui habere se vult, quam eum cui donat: magisque eum cui donat, quam heredem suum5: when a man, moved by the consideration of death in a serious

1 I. II. 7. 2.
4 C. VIII. 56. 8.

2 C. VIII. 54. 35. 5.

3 C. VIII. 36. 3.

5 D. XXXIX. 6. 1.

V.

illness, or when going to undertake a dangerous CHAP. enterprise, gives to the donee that which he had rather retain himself, but which he wishes the donee should possess rather than his own heir. Every How exone could make this donation who could make a ecuted. will, and all could take it who could take a legacy'. It must be made in the presence of five witnesses present at the same time. It was not complete unless followed by the death of the donor. A filiusfamilias could make this gift with the permission of his fathers.

A mortis causa donatio in some respects differs from a legacy, but there is no practical distinction.

propter

Donatio propter nuptias, called before the time Donatio of Justinian donatio ante nuptias, because, except nuptias. in certain cases, no gift could be made by the husband to the wife after marriage. This was a gift made by the husband to the wife on account, or in contemplation, of marriage. The woman on the occasion of her marriage brought her dos, property in some form, of which the husband had the use, and which usually was to be returned at the death or divorce of the wife; and the donatio propter nuptias was considered a security, caution money, for the Dos, if the husband failed to account for it. This donation might be made after marriage1; if made before marriage and the marriage did not take place it must be returned3.

Munus differed from donum because it was that Munus. which was given officii causa, whereas donum was liberalitas in accipientem collata, nullo jure cogente. Munus differed from donum as the species from the genus. Munera were given at the beginning of the new year called Strenæ, on birth-days, and wedding-days; also by clients to their patrons, and were carried to such an extravagant extent that the Lex Cincia was passed A.U.C. 550, called the Lex Cincia. Lex muneralis, preventing munera altogether in

2 C. VIII. 57. 4.

1 D. XXXIX. 6. 15. 9.
3 D. XXXIX. 6. 25.

4 C. v. 8. 20.

5 C. v. 3. 2.

BOOK

Dos.

II.

some cases, and fixing the sum to be paid to an advocate for his services. It also required that munera, when bestowed on certain persons, should be accompanied with mancipation'.

Dos signified the property which the woman contributed on the occasion of the marriage towards meeting the expenses of the household. It Definition. is defined as pecunia data marito ad sustinenda matrimonii onera. It did not necessarily consist of money, it might be cattle, slaves, or land, or all of these. The word itself is incapable of translation; some have called it dower, but this creates confusion, because it signifies the right of maintenance of the English widow out of her husband's estate. The Dos was settled before the marriage between the sponsus and the father or tutor of the sponsa. Sometimes this was done in writing, called the Instrumen- instrumenta dotalia.

tur;

.

ta dotalia. The Dos either dabatur, dicebatur, or promittebatur. Dabatur: this was when it was paid down Dos daba in money, or handed over to the husband. In the former case the money was sealed up in a bag and placed with the Auspex2, who delivered it to the dicebatur; husband the day after the marriage. Dicebatur: here the dos was declared thus, Dos est decem promitte talenta, to which the sponsus replied, Accipio3. Promittebatur: this was where the dos was secured by a stipulation payable by instalments in one, two, and three years. When the dos consisted of property that was of a nature to become deteriorated by use, such as cattle or slaves, it was æstimata, valued at the time of delivery: so that the husband in such case could dispose of it, but was bound to return the value.

batur.

Profectitia

ventitia.

The dos was profectitia, or adventitia: the forand ad- mer was what was given by the father of the bride, the latter was every thing that was derived from any other source. As a general rule the dos profec

1 Hein. Ant. II. 7. 10.
3 Hein. Ant. II. 8. 6.

2 Juv. Sat. X. 333.

4 Hein. Ant. II. 8. 5; Ulp. Fr. VI. 132.

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