DOI Seite / Zitierlink:
https://doi.org/10.11588/diglit.51387#0055
TREASURE-TROVE 53
his joint-master get any share of it? Or is the case the same
as when a slave, by order of a single joint-master, makes a
stipulation, or takes delivery of something expressly on
behalf of one joint-master.1 Tryphoninus (or an inter-
polator) accepts the second ruling, which means that the
owner of the ground gets the whole. This, it has been
pointed out,2 seems unjust, unless the owner of the land had
ordered the slave actually to dig for a hoard; in which case,
however, the slave being the instrument of his master, the
find must be regarded as made by his master.3
(4) If a slave, in whom a third party enjoys a usufruct,
finds on the land of the slave’s bare proprietor, does that
bare proprietor get the whole, or only the landowner’s
share? Further, if the slave finds on the land of a stranger,
does the finder’s share go to the bare proprietor or to the
usufructuary? We must examine whether the acquisition is
made from the labour of the slave. Suppose he was digging
in the ground when he made the discovery, so that it may
1 aut per traditionem aliquid accipit, vel nominatim alteri. The last three
words are deleted by de Zulueta as an obvious gloss.
2 C. H. Monro, op. cit., p. 76, note. ‘The reasonable decision . . .
would seem to be that the owner’s half goes to the owner of the ground,
and the finder’s half is divided between or amongst the owners of the
slave, so that, if the latter are two in number and have equal shares in
the slave, one will get three-quarters and the other a quarter.’ Try-
phoninus does not discuss the case of a common slave finding in land
owned jointly by the condomini-, here division must be made of the
finder’s share in proportion to their interests in the slave and of the
owner’s share in proportion to their interests in the land. Czyhlarz,
p. 238.
3 Schultz, p. 101 f., who deletes the whole of the passage relating to
the disposal of the other half. By the preceding decision, that should
belong to the owners in proportion to their shares. Yet the passage goes
on to decide the matter quite differently, and in favour of the landowner
alone. This had already puzzled the glossator. ‘Quod magis dici
poterit: ut ei soli acquiratur secundum quosdam. Vel legas interroga-
tive, ut postea dicas medietatem medietatis acquiri alteri, quod videtur
habere rationem secundum Al(bericum). Vel die, referri non ad
proximum, sed superius “an aliquid etc.” et est idem sensus.’
his joint-master get any share of it? Or is the case the same
as when a slave, by order of a single joint-master, makes a
stipulation, or takes delivery of something expressly on
behalf of one joint-master.1 Tryphoninus (or an inter-
polator) accepts the second ruling, which means that the
owner of the ground gets the whole. This, it has been
pointed out,2 seems unjust, unless the owner of the land had
ordered the slave actually to dig for a hoard; in which case,
however, the slave being the instrument of his master, the
find must be regarded as made by his master.3
(4) If a slave, in whom a third party enjoys a usufruct,
finds on the land of the slave’s bare proprietor, does that
bare proprietor get the whole, or only the landowner’s
share? Further, if the slave finds on the land of a stranger,
does the finder’s share go to the bare proprietor or to the
usufructuary? We must examine whether the acquisition is
made from the labour of the slave. Suppose he was digging
in the ground when he made the discovery, so that it may
1 aut per traditionem aliquid accipit, vel nominatim alteri. The last three
words are deleted by de Zulueta as an obvious gloss.
2 C. H. Monro, op. cit., p. 76, note. ‘The reasonable decision . . .
would seem to be that the owner’s half goes to the owner of the ground,
and the finder’s half is divided between or amongst the owners of the
slave, so that, if the latter are two in number and have equal shares in
the slave, one will get three-quarters and the other a quarter.’ Try-
phoninus does not discuss the case of a common slave finding in land
owned jointly by the condomini-, here division must be made of the
finder’s share in proportion to their interests in the slave and of the
owner’s share in proportion to their interests in the land. Czyhlarz,
p. 238.
3 Schultz, p. 101 f., who deletes the whole of the passage relating to
the disposal of the other half. By the preceding decision, that should
belong to the owners in proportion to their shares. Yet the passage goes
on to decide the matter quite differently, and in favour of the landowner
alone. This had already puzzled the glossator. ‘Quod magis dici
poterit: ut ei soli acquiratur secundum quosdam. Vel legas interroga-
tive, ut postea dicas medietatem medietatis acquiri alteri, quod videtur
habere rationem secundum Al(bericum). Vel die, referri non ad
proximum, sed superius “an aliquid etc.” et est idem sensus.’