DOI Page / Citation link:
https://doi.org/10.11588/diglit.51387#0054
52 PROCEEDINGS OF THE BRITISH ACADEMY
equivalent to discovery by the head of the family or the
master himself.1
(2) If a slave owned by a number of masters in common
finds on a stranger’s land, then will the finder’s share be
divided among his masters in proportion to their shares of
ownership in him, or always in equal shares?
The answer of Tryphoninus is that the case is similar to
that of an inheritance or a legacy or a gift from some other
persons handed over to a slave, so that the finder’s share is
divided among his masters in proportion to their shares of
ownership in him.2
(3) If a slave owned by more than one master in common
finds in the land of one of his masters, what happens?
Tryphoninus replies that, as far as concerns the landowner’s
share, there is no doubt; that part goes to the one master
who owns the land alone. But3 as to the other part, does
1 The disappearance of the slave from modern civilization renders
this case (except when the finder is a child of the house), and the three
following, of merely academic interest. As regards the filius-familias
Schwach notes (p. I37)thatby a constitution of 529 Justinian allowed the
filius-familias to retain property in what came to him ex liberalitate fortunae
vel laboribus suis, though the paterfamilias would have the usufruct (Cod.
lust. 6, 61, 6; cp. Inst. 2, 9, 1). The modern problem that is likelyto arise
is that of a workman who finds a treasure while working on another
man’s land, doing work by contract with the landowner. (See p. 56.)
The case of the Niobid found in this way, with the decision of the Roman
Court of Appeal, 27 Aug. 1909, is discussed by Perozzi, p. 39 f.
2 Here also Schultz makes drastic cuts. The Glossator had already
remarked: ‘sed certe legatum et hereditas non sunt omnino donum for-
tune: sed fiunt ob precedens meritum.’ The words quia et thensaurus donum
fortunae creditur must go out. Less acceptable is the excision of utrum pro
dominiipartibus an semper aequis adquiret, on the ground that the jurist would
never have dreamed of considering as even possible a division by equal
parts without reference to the proportion of ownership; or that of quod
ab aliis donatum servo traditur. The distinction, Schultz says, is between
acquisition by all the masters in proportion to their ownership, and
acquisition by one of them alone. The latter might be possible in the case
of a gift to a slave, as for instance when there was nominatio unius domini.
3 Assuming for convenience of statement that there are only two
masters in all.
equivalent to discovery by the head of the family or the
master himself.1
(2) If a slave owned by a number of masters in common
finds on a stranger’s land, then will the finder’s share be
divided among his masters in proportion to their shares of
ownership in him, or always in equal shares?
The answer of Tryphoninus is that the case is similar to
that of an inheritance or a legacy or a gift from some other
persons handed over to a slave, so that the finder’s share is
divided among his masters in proportion to their shares of
ownership in him.2
(3) If a slave owned by more than one master in common
finds in the land of one of his masters, what happens?
Tryphoninus replies that, as far as concerns the landowner’s
share, there is no doubt; that part goes to the one master
who owns the land alone. But3 as to the other part, does
1 The disappearance of the slave from modern civilization renders
this case (except when the finder is a child of the house), and the three
following, of merely academic interest. As regards the filius-familias
Schwach notes (p. I37)thatby a constitution of 529 Justinian allowed the
filius-familias to retain property in what came to him ex liberalitate fortunae
vel laboribus suis, though the paterfamilias would have the usufruct (Cod.
lust. 6, 61, 6; cp. Inst. 2, 9, 1). The modern problem that is likelyto arise
is that of a workman who finds a treasure while working on another
man’s land, doing work by contract with the landowner. (See p. 56.)
The case of the Niobid found in this way, with the decision of the Roman
Court of Appeal, 27 Aug. 1909, is discussed by Perozzi, p. 39 f.
2 Here also Schultz makes drastic cuts. The Glossator had already
remarked: ‘sed certe legatum et hereditas non sunt omnino donum for-
tune: sed fiunt ob precedens meritum.’ The words quia et thensaurus donum
fortunae creditur must go out. Less acceptable is the excision of utrum pro
dominiipartibus an semper aequis adquiret, on the ground that the jurist would
never have dreamed of considering as even possible a division by equal
parts without reference to the proportion of ownership; or that of quod
ab aliis donatum servo traditur. The distinction, Schultz says, is between
acquisition by all the masters in proportion to their ownership, and
acquisition by one of them alone. The latter might be possible in the case
of a gift to a slave, as for instance when there was nominatio unius domini.
3 Assuming for convenience of statement that there are only two
masters in all.