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https://doi.org/10.11588/diglit.51387#0044
42 PROCEEDINGS OF THE BRITISH ACADEMY
the origin of the finder’s right in occupation of res nullius.1
As to the landowner, some modern writers hold that the
landowner has an immediate ownership of his share, just
as the finder has; others say that the finder is the only
owner, subject to an obligation2 to satisfy the claim of the
landowner. This latter view is based on the conception of
the acquisition of treasure as occupation;3 if treasure can
only be acquired by occupation, obviously it is the finder
who has the right to it. The sources support the other view,
of a common ownership by the landowner simultaneously
with the finder, and a preconceived construction of the
nature of the act of acquisition must not be allowed to rebut
their evidence. Thus, take the question of Tryphoninus:4
when a slave, in whom a third party has an usufruct, finds
1 See the discussions in F. C. Gesterding, Lehre vom Eigenthum, 1817,
pp. 99-105; W. Sell, i, pp. 170 ff.; Dernburg in Krit. Zeitechr. f. d.
gesammte Rechtswiss., Heidelberg, i, 1853; J. A. Gruchot, Beitrage, vi,
1862, pp. 576-82; Th. Gimmerthal, ‘Ueber den Eigenthumserwerb am
Schatze’, in Archiv f. civilist. Praxis, 51, 1868, pp. 63-82; A. Brinz,
Lehrbuch der Pandekten, i, 1857, p. 192 f.; F. Andre, Die Lehre vom Schatz
(Berlin Diss., 1884), p. 28 f. (the ownership of treasure is a case of
titulus ex lege)-, Mahnke, pp. 21-37; Czyhlarz, op. cit., p. 219 f.;
M. Pampaloni, p. 107 f; Kohler, ‘Das Recht an Denkmalern und Alter-
tumsfunden’, in Deutsche Juristenzeitung, 9, 1904, col. 777 (no legal basis
for the landowner’s claim); Pick, ‘Die Anspriiche der Museen auf
Schatz- und Graberfunde’, in Museumskunde, xi, 1915, and in his
Aufsdtze, 1931, p- 209 (denies it to both finder and owner). Other
references in Gierke, Deutsches Privatrecht, ii, 1905, p. 542, n. 91.
2 If the landowner’s right were purely obligatory, the sources ought
to have stated that expressly. Bonfante, Corso, ii (2), p. no.
3 ‘Some at least of the Roman jurisconsults assigned the principle of
occupation as the motive for acquisition by the finder; that is clear
from 1. 31 D. a.r.d. 41. 1: sic enim fit eius qui invenerit quod non alterius sit.
Nay more, it is clear from the law cited, and further from c. 2. C. Theod.
de thes. 10. 18, that the classical jurisconsults held that the principle
of occupation ought to have exclusively governed the acquisition of
treasure, and that it was only aequitatis caussa that it underwent a certain
mitigation (aliquod temperamentum).’ Pampaloni, p. 119.
4 Dig. 41, 1. 63. § 3. Cp. Basil. Ii. 1. 59 (below p. 53). Translation
based on de Zulueta. Tryphoninus flourished early in the third century.
the origin of the finder’s right in occupation of res nullius.1
As to the landowner, some modern writers hold that the
landowner has an immediate ownership of his share, just
as the finder has; others say that the finder is the only
owner, subject to an obligation2 to satisfy the claim of the
landowner. This latter view is based on the conception of
the acquisition of treasure as occupation;3 if treasure can
only be acquired by occupation, obviously it is the finder
who has the right to it. The sources support the other view,
of a common ownership by the landowner simultaneously
with the finder, and a preconceived construction of the
nature of the act of acquisition must not be allowed to rebut
their evidence. Thus, take the question of Tryphoninus:4
when a slave, in whom a third party has an usufruct, finds
1 See the discussions in F. C. Gesterding, Lehre vom Eigenthum, 1817,
pp. 99-105; W. Sell, i, pp. 170 ff.; Dernburg in Krit. Zeitechr. f. d.
gesammte Rechtswiss., Heidelberg, i, 1853; J. A. Gruchot, Beitrage, vi,
1862, pp. 576-82; Th. Gimmerthal, ‘Ueber den Eigenthumserwerb am
Schatze’, in Archiv f. civilist. Praxis, 51, 1868, pp. 63-82; A. Brinz,
Lehrbuch der Pandekten, i, 1857, p. 192 f.; F. Andre, Die Lehre vom Schatz
(Berlin Diss., 1884), p. 28 f. (the ownership of treasure is a case of
titulus ex lege)-, Mahnke, pp. 21-37; Czyhlarz, op. cit., p. 219 f.;
M. Pampaloni, p. 107 f; Kohler, ‘Das Recht an Denkmalern und Alter-
tumsfunden’, in Deutsche Juristenzeitung, 9, 1904, col. 777 (no legal basis
for the landowner’s claim); Pick, ‘Die Anspriiche der Museen auf
Schatz- und Graberfunde’, in Museumskunde, xi, 1915, and in his
Aufsdtze, 1931, p- 209 (denies it to both finder and owner). Other
references in Gierke, Deutsches Privatrecht, ii, 1905, p. 542, n. 91.
2 If the landowner’s right were purely obligatory, the sources ought
to have stated that expressly. Bonfante, Corso, ii (2), p. no.
3 ‘Some at least of the Roman jurisconsults assigned the principle of
occupation as the motive for acquisition by the finder; that is clear
from 1. 31 D. a.r.d. 41. 1: sic enim fit eius qui invenerit quod non alterius sit.
Nay more, it is clear from the law cited, and further from c. 2. C. Theod.
de thes. 10. 18, that the classical jurisconsults held that the principle
of occupation ought to have exclusively governed the acquisition of
treasure, and that it was only aequitatis caussa that it underwent a certain
mitigation (aliquod temperamentum).’ Pampaloni, p. 119.
4 Dig. 41, 1. 63. § 3. Cp. Basil. Ii. 1. 59 (below p. 53). Translation
based on de Zulueta. Tryphoninus flourished early in the third century.