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Causae adquirendi eius quod nostrum non sit (D. 41,2,3,21): ‘rechtmäßiger Eigenbesitz’?

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image of Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review

The thesis that the causae adquirendi in D. 41,2,3,21 lead first of all to a ‘rechtmäßiger Eigenbesitz’ (justified possession) and not to ownership or acquisitive possession, as formulated by Pool, does appear not to hold upon examination of this text. The key text D. 41,4,2,1 on which his thesis that the title pro emptore implies such possession relies, does not imply more than factual possession. The causae of D. 41,2,3,21 refer, as the causa in D. 41,4,2,1 and other places, to the causa antecedens, the reason for the taking of possession.

Affiliations: 1: sometime Regius Professor of Civil Law, Oxford, All Souls College, Oxford OX1 4AL, UK


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