DOI Page / Citation link:
https://doi.org/10.11588/diglit.51387#0057
TREASURE-TROVE 55
within the fixed time, then, since everything has to be
handed over which is required to be restored in the case of
an ordinary creditor,1 the creditor must make restitution,
but only of half the find, since halfis always left to the finder.2
That the mortgagee, when he finds treasure on the
mortgaged land, should take only the share due to the finder,
not that due to the dominus fundi, follows from the fact that
the mortgagor, even after he has mortgaged his land,
continues to retain his property in it. Treasure found on
the land before foreclosure—i.e. before the creditor gets the
court to confer ownership on him—thus goes, as to half, to
the landowner, and he does not have to give it up even after
the foreclosure. But treasure found after the foreclosure
by the creditor goes all to him, except in the case where a
further period is allowed by special indulgence for redemp-
tion. The passage of Tryphoninus discussed above deals
with the special case in which a treasure is found after the
foreclosure, but before the expiry of the time allowed
1 Reading ‘quoniam universa praestantur ea quae in simplici creditore
revocantur’. Monro keeps the vulgate: ‘praestantur atque in simplici
petitore revocantur’, and translates ‘inasmuch as everything is made good
that is chargeable in the case of an ordinary application to redeem’.
2 It is presumed that he has made the find by chance, not by looking
for it without permission of the landowner. In the latter case he would
have to give up the whole. In his reconstruction of this paragraph,
Schultz, even for him, goes rather far, referring the first sentence to a
find by a creditor in agro fiduciae dato (i.e. conveyed absolutely to the
creditor, under covenant to reconvey it on payment of the debt), and
making it decide that he finds in his own land, acquires the whole for
himself, but, when the money is paid up, must restore the half which
he acquired iure creditoris. Schultz’s starting-point for this version, or
rather subversion, is that there is here no such thing as acquisition iure
creditoris-, but, since these words are preserved, they indicate that the
sentence originally referred to some case in which treasure could be
acquired iure creditoris, i.e. a case of fiducia. But he does not explain
how the sentence came to be turned upside down in this extraordinary
way, and it seems better to assume looseness of expression, as who should
say ‘it was by his right as finder (since as creditor he had no right)’, &c.
In the second part of this paragraph he makes further extensive dele-
tions which need not be described here.
within the fixed time, then, since everything has to be
handed over which is required to be restored in the case of
an ordinary creditor,1 the creditor must make restitution,
but only of half the find, since halfis always left to the finder.2
That the mortgagee, when he finds treasure on the
mortgaged land, should take only the share due to the finder,
not that due to the dominus fundi, follows from the fact that
the mortgagor, even after he has mortgaged his land,
continues to retain his property in it. Treasure found on
the land before foreclosure—i.e. before the creditor gets the
court to confer ownership on him—thus goes, as to half, to
the landowner, and he does not have to give it up even after
the foreclosure. But treasure found after the foreclosure
by the creditor goes all to him, except in the case where a
further period is allowed by special indulgence for redemp-
tion. The passage of Tryphoninus discussed above deals
with the special case in which a treasure is found after the
foreclosure, but before the expiry of the time allowed
1 Reading ‘quoniam universa praestantur ea quae in simplici creditore
revocantur’. Monro keeps the vulgate: ‘praestantur atque in simplici
petitore revocantur’, and translates ‘inasmuch as everything is made good
that is chargeable in the case of an ordinary application to redeem’.
2 It is presumed that he has made the find by chance, not by looking
for it without permission of the landowner. In the latter case he would
have to give up the whole. In his reconstruction of this paragraph,
Schultz, even for him, goes rather far, referring the first sentence to a
find by a creditor in agro fiduciae dato (i.e. conveyed absolutely to the
creditor, under covenant to reconvey it on payment of the debt), and
making it decide that he finds in his own land, acquires the whole for
himself, but, when the money is paid up, must restore the half which
he acquired iure creditoris. Schultz’s starting-point for this version, or
rather subversion, is that there is here no such thing as acquisition iure
creditoris-, but, since these words are preserved, they indicate that the
sentence originally referred to some case in which treasure could be
acquired iure creditoris, i.e. a case of fiducia. But he does not explain
how the sentence came to be turned upside down in this extraordinary
way, and it seems better to assume looseness of expression, as who should
say ‘it was by his right as finder (since as creditor he had no right)’, &c.
In the second part of this paragraph he makes further extensive dele-
tions which need not be described here.