DE CONDICTIONE TRITICARIA.

D. 13. 3.

1. Ulpianus libro uicensimo septimo ad edictum. Qui certam pecuniam numeratam petit, illa actione utitur ‘si certum petetur’: qui autem alias res, per triticariam condictionem petet, et generaliter dicendum est eas res per hanc actionem peti, si quae sint praeter pecuniam numeratam, siue in pondere siue in mensura constent, siue mobiles sint siue soli, quare fundum quoque per hanc actionem petimus et si uectigalis sit

1.

¹ Ager vectigalis is treated of in D. 6. 3, and as that title is exceed­ingly short, a translation of it is here given: “the lands of cities are in some cases termed vectigales, in others not. They are called vecti­gales when leased in perpetuity, that is, on terms that so long as the rent is paid for them, they shall not be taken away either from the actual hirers or their successors. The non vectigales are those which are let out for cultivation, as we usually let out our lands to private individuals.

When persons have hired land for cultivation in perpetuity, although they do not become owners, yet it is held that they have an action in rem against any intruder, and even against the burgesses themselves, provided, that is, that they pay their rent.

As the tenants are not domini, their right is possession only, and in fact, as Savigny points out, “pos­session,” as first recognised, meant a

2. Idem libro octauo decimo ad Sabinum. Sed et ei, qui ui aliquem de fundo deiecit, posse fundum condici Sabinus scribit, et ita et Celsus, sed ita, si dominus sit qui deiectus con­dicat : ceterum si non sit, possessionem eum condicere Celsus ait

3. Idem libro uicensimo septimo ad edictum. In hac actione si quaeratur, res quae petita est cuius temporis aestima­tionem recipiat, uerius est. quod Seruius ait, condemnationis tempus spectandum: si uero desierit esse in rebus humanis, mortis tempus, sed v-Xd-rei secundum Celsum erit spectan­dum : non enim debet nonissimum uitae tempus aestimari, ne ad exiguum pretium aestimatio redigatur in seruo forte morti- lated for one, as for instance, an usufruct or a servitude over estates rural or urban. 1. But no one can claim his own property by this form of action, except in cases where he is permitted so to do, for example, on the ground of theft or when a moveable has been taken away by force.

2. Ulpian. Against him also who has ejected any one by force from land, Sabinus states, there can be a condiction for the land; and so too Celsus, but only in case the ejected per­son who sues is owner; if, however, he be not owner, Celsus says, he can bring a condiction for the possession.

3. Ulpian. In this action, if it be asked at what time the article claimed is to be valued, what Servius says is the more correct rule, viz. that the time of the award is to be regarded : but if it has ceased to exist, the time of its destraction, and yet, according to Celsus, this must be considered liberally; for the last moment of existence ought not to be regarded, lest the valuation should be reduced to a trifling sum, as, for in­fere uulnerato. in utroque autem, si post moram deterior res facta sit, Marcellus scribit libro uicensimo habendam aestima­tionem, quanto deterior res facta sit: et ideo, si quis post moram seruum eluscatum dederit, nec liberari eum: quare ad tempus morae in his erit reducenda aestimatio.

right analogous to ownership in the ager publicus, where the true owner­ship was vested in the Roman peo­ple. It was allowed to continue with the ager vectigalis, as the later form of the ager publicus. See Sa-

vigny, on Poss. Bk. I. § 13 : Niebuhr, Romische Geschichte, vol. H. pp. 161 —170, 2nd edition. Hence the con­dictio applicable to recovery of ager vectigalis would be condictio tritica- ria incerti.

4. Gaius libro nono ad edictum prouinciale. Si merx aliqua, quae certo die dari debebat, petita sit, ueluti uinum oleum frumentum, tanti litem aestimandam Cassius ait, quanti fuisset eo die, quo dari debuit : si de die nihil conuenit, quanti tunc, cum iudicium acciperetur, idemque iuris in loco esse, ut primum aestimatio sumatur eius loci, quo dari debuit, -si de loco nihil conuenit, is locus spectetur, quo peteretur, quod et de ceteris rebus iuris est.

stance, when a slave is mortally wounded. But in either case *, if the thing has decreased in value after default has been made, Marcellus in his twentieth book says, an estimate must be made of the amount of its depreciation; and so, if any one has given up a slave, who lost an eye after default was made, he is not absolved: wherefore in such cases the valuation must be referred to the time of default^{[175] [176].}

4. Ulpian. If any merchandise, which ought to be given on a particular day, is claimed, as wine, oil, corn, Cassius says the amount in issue must be valued according to what it was worth at the date at which it ought to have been given : but, if there was no agreement as to this date, according to its worth at the time when the suit was instituted^[177]. And the same must be the rule as to place, so that primarily the value must be taken at the place where it ought to have been given, and if there was no agreement as to the place, that place is regarded where the demand was made. And this is the rule as to other matters also.

always in mora.

³ Unless the defendant was in mora: for then the plaintiff can claim the highest value since the time of default, if that is greater than the value at litis contestatio.

CAMBRIDGE I PRINTED BY C. J. CLAY, M.A. AT THE UNIVERSITY PRESS.

University Press, Cambridge, September, 1880.