Book VIII
Concerning property
De proprietatum
Antoninus Caracalla, 11 November 211:
If one thinks that they have an action against a person who built their house different from what it formerly was, so that it obstructs their lighting, they are not forbidden to bring suit in the usual manner.
Antoninus Caracalla, Rome, 28 July 213:
It has often been stated that property may be seized, as a pledge, and sold, to enforce a judgment, by order of the magistrate or judge who has jurisdiction, for the authority of the one ordering the seizure takes the place of a just obligation under a contract.
Antoninus Caracalla, 21 October 213:
If one can prove that the lower part of a building which touches the ground belongs to them, there is no doubt that a part placed above it by a neighbour is also under their ownership. Furthermore, a structure built upon somebody’s land rightfully belongs to them, while it remains in that condition, but if it is torn apart its material returns to its first owner, provided that it was not constructed with the intention of making a gift to the owner of the land.
Antoninus Caracalla, 6 September 214:
One should not be expelled, against their will, from a room which they hired, if they pay the rent to the owner of the apartment house, unless such owner proves that it is necessary for their own use, or that they want to improve it, or that the tenant conducted themselves badly in the rented room.
Antoninus Caracalla, 18 November 214:
As your co-owner could not alienate the portion of the property belonging to you without your consent, so they, by selling or pledging it as security for a debt, did so only for their portion. Hence, you may know that any such contract of theirs could not prejudice your ownership.
Alexander Severus, 19 February 222:
If one sold their house, compelled thereto by force, what was not done in good faith will not be considered valid.
Alexander Severus, 20 March 222:
If a child’s parents delivered property to them after reaching the age of sixteen which they had bought in the name of their child before they reached that age, they thereby acquire ownership thereof.
Alexander Severus, 30 October 222:
Neither one’s parent nor one’s spouse may sell their property against their will or without their knowledge, and in such a case one can sue to recover their property. But if one afterwards consented to this sale or lost ownership in some other manner, they have no case against the purchaser, but they are not forbidden to sue the seller for the price.
Alexander Severus, 1 November 222:
Ownership of property is not only shown by the documents of purchase, but by any other legal proof.
Alexander Severus, 1 December 222:
The owners of warehouses which are broken into must, if complaint is made thereof, produce the guards necessary to protect the property therein; if the owners have specifically guaranteed the custody of the property, they are responsible for it.
Alexander Severus, 22 December 222:
I. To demolish buildings for speculation and despoil them of their marble is forbidden by the edict of Vespasian and by a senate decree, unless authorised by the Town Council or Governor or a magistrate. An exception is made if some material is transferred from one house to another of the same owner, but such transfer is not permitted to the extent of marring the sight by tearing down whole buildings.
II. If a controversy is raised against you by someone as to the real estate which you allege to have bought in good faith, notify the seller, and if you win the case you will have what you purchased. But if you are evicted, you will recover from the vendor the damage you have sustained, in which will be included the price paid for the property.
Alexander Severus, 29 April 223:
The demand of your adversary, that you state the name of the vendor of the property which you acknowledge to have been in your possession, is proper. For it does not befit a person desirous of avoiding suspicion to say that they have purchased from a transient and unknown person.
Alexander Severus, 15 August 223:
A bye-law does not permit the taking of water which arises on another’s private property, without the consent of the owner of said property.
Alexander Severus, 22 November 223:
The right to pursue the value of things which have been taken by force or theft remains undiminished if said things have subsequently perished.
Alexander Severus, 25 November 223:
If the vendor of property showed the boundaries and guaranteed that no one would invade them, and you are evicted from them, the eviction is at the peril of the vendor. But if they sold the property while not showing the boundaries, the vendor has nothing to do with such suit as to its boundaries.
Alexander Severus, 5 February 224:
A person is not forbidden, if no agreement to the contrary is made, to sublet property which they have hired, for use by the sub-lessee.
Alexander Severus, 26 March 224:
Since you say that the roots of trees situated and growing in the neighbouring property threaten the foundations of your own building, the magistrate will settle the matter. A neighbour should not be injured even by trees.
Alexander Severus, 4 June 228:
If a person to whom one gives money for a specific purpose only uses part of the money for that person and converts the remainder to their own use, they commit theft.
Alexander Severus, 7 December 234:
It is not necessary for a purchaser of property to retain a tenant to whom the former owner let it, unless they bought it with that condition; but if it is shown that they in some manner, though not in writing, agreed that the lease should continue, they may be compelled in an action to comply with the agreement.
Gordian III, 8 August 238:
If the parent or grandparent of one was compelled to sell their land by force or fear, then, even if the purchaser has gone so far as to sell it to another, nevertheless, if one is heir to their parent or grandparent they may go before the magistrate and demand that, upon the return of the price paid, the land be restored to them, provided that the second purchaser has not already held the land for more than twenty years.
Gordian III, 2 September 238:
A trustee appointed by the Consuls or a magistrate has no power of appointing a fellow trustee over the same property.
Gordian III, 22 February 239:
One is unaware of the truth in thinking that the heirs of a lessee do not succeed to the rights of a lease, since, if the lease is perpetual, it is transmitted to the heirs.
Gordian III, 5 August 239:
If a sale was extorted from you by force, fear of death or bodily pain, and you did not afterwards voluntarily confirm it, then if the property is not restored, and you successfully sue within a year, you will be awarded fourfold the value of what you were forced to sell.
Gordian III, 29 November 239:
When a river abandons its former channel and makes another for itself, the field round which it flows remains that of the former owner. But if it carries the soil off gradually, adding it to another field, such added soil is acquired by the right of alluvion, by the person whose land is thereby increased.
Gordian III, 27 December 239:
It makes no difference whether the force was used by the purchaser or by another with the knowledge of the purchaser – if one is compelled, through force or fear, to sell their possessions for less than their value, they will obtain judgment that whatever was dishonestly done shall be reversed.
Gordian III, 17 December 241:
If your landed-estates were sold contrary to the decree of the senate which forbade the alienation of land belonging to minors, sue the possessor thereof so that if you prove the fact, the property shall be returned to you, and all fruits thereof recovered, unless it appears that the purchaser was one in good faith.
Philip, 8 August 244:
A rescript has often been issued that lessees or their heirs cannot be compelled against their will to continue as lessees after the expiration of the lease.
Philip, 29 March 245:
If your partner in owning a building refuses to contribute their part of the expense in repairing it, and you alone made the repairs, and the amount expended by you for your partner’s potion is not repaid to you within four months, and the non-payment thereof is due to your partner’s fault, you may, according to the ancient law, sue for the right of the ownership of the whole.
Philip, 1 August 245:
If you were defeated in an action to retain or recover property, not through the wrongful action of the magistrate but for a legal reason, you may claim any pledge given as a guarantee against eviction.
Philip, 29 October 245:
You ask with no good reason that damage inflicted on your property on leased premises by the attack of robbers should be made good by the tenant who was guilty of no fault.
Decius, 28 March 250:
Good possessory title is acquired of property given by a person to an infant and delivered, and although opinions of authors differ, it seems wiser, meanwhile, that delivery should give legal possession, although the will to take was in the meantime incomplete; otherwise, as stated in the response of the learned Papinian, legal possession could never be acquired for an infant even through a guardian.
Valerian and Gallienus, 3 January 258:
Not only are minors forbidden to alienate lands, but they cannot transfer their ownership thereof either pursuant to compromise or exchange, much less by gift, or in any other manner. Hence, if you gave a farm to your brothers pursuant to a compromise, you can bring a real action to recover it, but if you received anything from them through the same agreement, you should, in turn, restore that.
Valerian and Gallienus, 26 November 258:
If you show, as you allege, that you made a gift subject to a duty, you have an action upon the ground that the person to whom you made the gift has refused to comply with the condition; that is to say, you have an action in which the former ownership may be restored to you.
Gallienus, 29 July 260:
The terms of a lease must be observed, and no rent beyond the amount agreed on can be demanded. And if the time for which the property was leased has expired, and the lessee holds over under the same lease, the agreement must be considered as impliedly renewed.
Claudius II, 25 April 269:
It shall not be permitted that, contrary to established custom, one should be deprived of the use of water which flows from a spring belonging to them, since it would be harsh and nearly cruelty that a flow of water arising from their lands should be wrongly conducted away for the use of neighbours when their lands are thirsting.
Carus, 12 January 283:
A possession of which one made you a gift could not be sold by them upon the mere ground that they repented the gift.
Carus, 8 September 283:
If a minor gave a promise in writing to give up property, such writing will not injure their right to sue for its return, since it is contrary to the authority of the senatorial decree.
Carinus, Rome, 27 January 284:
Even though a gift does not appear to be made by letter, still it is not doubtful that it may be made by words.
Diocletian, Milan, 11 February 286:
There is no doubt that gifts between absent persons may be valid.
Diocletian, 11 March 286:
If you made a gift subject to the limitation that upon the death of the recipient it should revert to you, the gift is valid, since it may be made for a time, certain or uncertain, the limitation, of course, which is annexed, to be observed.
Diocletian and Maximian, 28 October 286:
If one sold property for less than half of its true value, it is just that they should receive it back through the authority of a judge, or that the purchaser should pay them what is lacking of the just price and keep the property.
Diocletian and Maximian, 7 January 290:
The ownership of property is transferred by delivery and usucaption (prescription), but not by naked pacts.
Diocletian and Maximian, 1 August 290:
Although possession as owner cannot be acquired by mere intention, it may, nevertheless, be retained by intention alone. If someone, therefore, failed to cultivate the land, which was left untilled in the past, without any intention to abandon it, but they simply deferred the cultivation thereof for some reason, they could not be prejudiced by reason of the misfortune of the time gone by.
Diocletian and Maximian, Heraclea, 27 February 291:
Whoever hired their own property thinking it to be property of another does not transfer ownership thereby, but makes an ineffectual contract of hire.
Diocletian and Maximian, 1 October 291:
A completed gift does not admit subsequent conditions.
Diocletian and Maximian, Sirmium, 1 January 293:
If somebody is shown to have built a window in somebody’s wall without their permission, by force or secretly, they will be compelled to tear the new work down at their expense, and restore the former condition of the wall.
Diocletian and Maximian, Sirmium, 26 February 293:
If anyone knowingly sowed another’s field or put plants thereon, and these have struck their roots into the ground, they justly become part of the soil, for he makes the seed and the plants the property of the owner instead of making, through such action, the soil his own.
Diocletian and Maximian, Byzantium, 5 April 293:
It is certain and plain that one managing a landed estate on behalf of another has no right, unless he has received a special mandate to sell, to dispose of the ownership of any of the property. Hence if one purchases the farm from them, who were the vendors, without the consent of the owner, they must clearly understand that any demand that the ownership be conceded to them pursuant to such purchase, is neither valid nor honest.
Diocletian and Maximian, 27 April 293:
No one makes a gift unknowingly or unwillingly. One cannot lose what they did not have in mind or did not specially mention in writing.
Diocletian and Maximian, Heraclea, 30 April 293:
Only on account of debt, and pursuant to an order of a magistrate made after investigation, is undeveloped land of a minor permitted to be sold.
Diocletian and Maximian, 16 May 293:
No one is forbidden to transfer their undivided interest in property to another as a gift.
Diocletian and Maximian, Sirmium, 18 May 293:
If it is shown that something was given you by letter, the brevity of the document does not prejudice the gift if it is shown to have been properly made.
Diocletian and Maximian, 17 September 293:
One cannot give as a gift without the consent of the owner what they do not own.
Diocletian and Maximian, 27 November 293:
Old age alone constitutes no impediment to the making of a gift.
Diocletian and Maximian, Sirmium, 30 December 293:
One’s sibling is not permitted to annul a gift of theirs in contemplation of death legally made.
Diocletian and Maximian, 13 February 294:
Landed-estates sold contrary to the senate decree which forbade the alienation of land belonging to minors cannot legally be held even by a second purchaser unless the fixed prescriptive period of five years has elapsed.
Diocletian and Maximian, 14 March 294:
If somebody paid the price to the managing agents of another who sold them property without mandate (authority), and it is not shown that the consent of the owner either preceded or followed the contract, the price shall be restored to them.
Diocletian and Maximian, Anchialus, 8 April 294:
If, while a minor, you with the consent of your guardian, but without an order of the relevant magistrate, sold land, you could not, according to the senatorial decree, lose the ownership thereof or right thereto, and it is clear that you may bring an action to recover it, together with any fruits thereof.
Diocletian and Maximian, 1 May 294:
It is certain that before the return of stolen property, the responsibility for all damage to it is on the thief.
Diocletian and Maximian, 27 September 294:
If the one you gave a gift to returned it to you pursuant to a later agreement, the document which evidenced the granting of the gift cannot prejudice the subsequent transaction.
Diocletian and Maximian, 7 December 294:
Not even land owned in common between minors is under the senatorial decree permitted to be sold without an order of the magistrate. For it has long been the rule that only when a co-owner, who is of age, asks for a division, may an alienation be made without an order of the magistrate.
Diocletian and Maximian, Nicomedia, 13 December 294:
I. An owner of private property is not forbidden to sell a certain portion of their land, changing its boundaries, and retain the rest. Nor may the purchaser claim more than they bought by measurement pursuant to the sale, under the pretext that the former boundaries were different.
II. When one is given the unhindered possession of property as a gift, they are not any the less able to hold it because the execution of a document relating thereto was omitted.
Diocletian and Maximian, 18 March 296:
Land can in no manner be sold by a minor without an order of the magistrate, unless it should be perceived that the alienation thereof was directed to be made by the last will of the testator from whom the property was acquired by the minor.
Constantine I, Trier, 22 January 314:
No one doubts that possession may be looked at in a double aspect, one consisting of a right, the other of physical occupation, and both are legal only when confirmed by the silence and muteness of all adversaries. Hence one cannot be considered in possession as owner while a suit and controversy is pending, who, though they hold it physically, is doubtful and uncertain as to their right of possession by reason of the suit.
Constantine I, Serdica, 20 April 316:
If anyone wants to give property to an infant before the latter is able to speak, or has capacity of will to receive the property given to them, they must complete the transaction by executing a document evidencing the gift.
Constantine I, Bessium, 22 February 330:
If anyone has brought a proceeding to determine the boundaries of their property which also involves the question of the ownership of the property, the proposition as to the possession shall be settled first and then a surveyor must be sent to the property, so that the suit may be ended when the truth is known. Even if the opposing party absents themselves to prevent the adjudication of such question, a surveyor, accompanied by the party present, shall still be sent for the said purpose.
Constantine I, 23 June 330:
If it is shown that one who brought an action to settle boundaries usurped property of another before any (judicial) determination was made, they shall lose not only what they wrongly claimed, but, so that everyone may be content with their own and may not seek the property of another, the person who invaded another’s field and is defeated in the litigation shall lose as much of their own as they sought to take from the other.
Julian, 362:
Whoever builds on public property at their own expense, by which they do no damage to the area, may hold the building as their own, and thanks are due them for having ornamented the area.
Julian, Antioch, 2 December 362:
Public buildings ought always to be kept for public use.
Gratian, Valentinian II and Theodosius I, Vincentia, 27 May 381:
Formerly relatives and consorts had the right to keep outsiders from purchasing property (belonging to a relative or consort), nor could men sell property which they had for sale at their discretion. But since this has only the appearance of being proper, and it seems to be a grave wrong, that men should be compelled to handle their property in a manner contrary to their wish, the ancient law is abrogated and everyone my seek and approve of his own purchaser as he pleases, unless the law specially forbids certain persons to do this.
Honorius and Theodosius II, Constantinople, 5 May 420:
In all provinces persons may, if they wish, surround the farms or places which they own with a wall.
Leo I, Constantinople, 2 March 459:
One has the right to register their gifts of any of their property, wherever located, before a magistrate. And as a gift itself depends on the will of the giver, so they have the right to make their gift public, as they wish.
Leo II and Zeno, Constantinople, 10 October 474:
We give full liberty to everyone to search for any treasure – that is to say, for movable property deposited by unknown owners in ancient times – on their own premises and enjoy it when it is found; provided it is searched for without any means forbidden by law, so that a gift of God may no longer be disturbed by any envious and malicious report, and it will, accordingly, be superfluous to petition for something which is already permitted by law; and the requisite bounty of imperial magnanimity may seem to have been granted in advance. No one, however, shall dare to search for hidden riches on their own account on the property of others against the consent or wish or without knowledge of the owners. And if anyone shall petition us concerning such matter, or shall, contrary to the tenor of this law, search for and find a treasure on another’s property, they shall turn it all over to the owner of the place, and shall be punished as a violator of a most just law. But if anyone, either in ploughing or otherwise cultivating another’s ground, or by some accident, and not as a result of an intentional search, perchance finds a treasure on another’s property, they shall divide what they have found, retaining half of it themselves, and giving the other half to the owner of the place. Thus each person may enjoy their own and not covet the property of another.
Zeno, Constantinople, 1 March 478:
We do not deem it necessary for neighbours or other persons to be witnesses to gifts which are enrolled on the records of magistrates, for testimony of private individuals is not necessary where public records suffice.
Zeno, Constantinople, 28 March 484:
As former and present laws provide punishment for intruders of another’s property, so it is not unreasonable that lessees and persons who detain the property of another also should not remain unpunished, if they, without any lawful claim thereto, resist lessors who wish to retake possession, according to law, of property which they permitted others to have on sufferance, and do not immediately – that is without judicial proceeding – give up possession to those lawfully entitled thereto.
Justinian I, Constantinople, 6 April 529:
In case property of minors has at any time been alienated by their guardians without a judicial order, and such minors, have, after becoming of age, failed to complain thereof for a long time so that such ineffectual alienation may be confirmed by long silence, we think that a definite time should be fixed for such ratification. We, therefore, direct that if for five continuous years after the age of minority has been passed, that is after their twenty-first year no complaint was made concerning such alienation by said minor, it shall not be disturbed by reason of the omission of the judicial order, but the property shall be considered alienated.
Justinian I, Constantinople, 18 March 530:
We ordain generally that all gifts legally made shall remain valid and in force unless the recipient of the gift shall be found ungrateful toward the donor, in that they commit a violent crime against their person or property, or in that they refuses to comply with any agreements attached to the gift, either in writing or oral, and which the recipient of the gift stipulated to carry out. For these reasons, but for them only, if proven upon trial by clear proof, gifts made to them may be rescinded, so that no one may have license to take another’s property, and laugh at the weakness of the donor. We order that these provisions shall apply, however, only to the original parties, and the successors of the donor shall have no right to institute complaints of that kind. For if the person themselves who suffers these things keeps silent, their silence shall remain permanent and shall not be interrupted by their posterity, either as against the person said to be ungrateful or as against their successors.
Justinian I, Constantinople, 18 October 531:
If a pact is made in connection with a sale or other alienation that the new owner shall not erect a burial monument in the place sold or transferred to them in some other manner, or consecrate it for any holy purpose, we ordain, although the point was doubted by the ancients, that such a pact shall be valid by virtue of this law, and shall remain inviolate. For it may perchance have mattered much to the vendor that they should not have a person as a neighbour whom they did not want and because of whom the prohibition was specially made. For if a vendor, or person alienating property in some other manner, would not transfer their right otherwise than upon reliance on such agreement, it would not be bearable that they should be deceived by putting a different construction on the contract.
Justinian I, Constantinople, 23 October 532:
Our Imperial Majesty has learned that some doubt arose among the ancients concerning protests against new construction, saying that if anyone sent a protest to stop a work, they could not, after the lapse of a year in which they sent it, again stop construction. This appears to us doubly iniquitous. For if they did not rightly prohibit the work, they ought not to stop it for a whole year, and if they rightly complained, they, likewise, should have permission to prohibit the building after the year. Avoiding, therefore, such injustice, we ordain that if anyone has sent such complaint, the magistrate shall make haste to decide the cause within three months. But if there is a question that is doubtful which hinders a prompt decision, the person who hastens to build may complete the structure in dispute after first furnishing security to the magistrate that, if they shall not have built lawfully, they will tear down the structure erected after the making of the complaint. In this way construction will not be stopped through foolish complaints and at the same time care is taken of the interests of complainants.