David Daube

Mistake of Law in Usucapion

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 Sibers opinion, Gaius intends only to point out that the offspring is not res furtiva , but he does not admit usucapion.

The Restoration of Fruits by the Bona Fide Possessor

The following remarks are intended to show that there exists no irreconcilable conflict between C. Just. 3.32.22 and C. Theod. 4.18.1. This is a strictly limited purpose, and the author does not propose to attempt any further conclusions as to the complicated history of the restoration of fruits in the rei vindicatio . It may be well to quote the two texts that form the subject of this article.

Nocere and Noxa

In the year 1908 Professor W. W. Buckland published his book on The Roman Law of Slavery. There existed in England, before that time, no Roman legal studies in the modern sense; and it is no exaggeration to say that it is he qui fundavit ius civile . To-day every scholar in Roman Law or History, whether English or foreign, is acquainted with Bucklands Equity in Roman Law (1911), Elementary Principles of Roman Law (1912), Text-Book of Roman Law (1921, 2nd ed. 1932), Manual of Roman Law (1925, reprinted 1928, new edition to appear 1939), and Main Institutions of Roman Law (1931), and with Buckland and McNairs Roman Law and Common Law (1936).