a. D. 6,2,14.
The actio Publiciana would be granted by the praetor in a great variety of situations in order to enable an acquirer who had not become owner according to the ius civile – and therefore could not resort to the rei vindicatio – to recover the possession of the object in case of losing it1. One of the applications of the
actio Publiciana concerning an alienation carried out through an – originally –
authorized non-owner is to be found in a text of Ulpian which conveys the opinion of Papinian:
1 On the active legal standing for the actio Publiciana, see Apathy, Die publizianische Klage
(1981), p. 12-13; Apathy, Publiciana ohne Ersitzungsbesitz (1984), p. 749-758; Wubbe, Ergo
broad powers, which are moreover in agreement with the ius civile, one could in fact assume that the way in which the curatores and tutores carry out their administration in classical law is a surviving institution from pre-classical times rather than an innovation of the classical period.
Chapter 4. Praetorian remedies regarding the transfer
of ownership by a non-owner
In the previous two chapters it has been shown that Roman jurisprudence made use of some broad notions which could be refined by jurists. In those cases where the owner authorized the delivery the voluntas domini played a central role, and while this notion belonged to the ius civile, jurists could develop different ideas regarding what the scope and implications of it were. In particular cases where it was clear that an act was performed voluntate domini, jurists would resort to other notions such as the bona fides to prevent the transfer of ownership from taking place. The idea of an honest and loyal administration played moreover a key role in the cases where the potestas alienandi stemmed from a legal provision, therefore preventing legal guardians from abusing their position. All of this shows that already in the sphere of the ius civile jurists had a considerable amount of tools to refine their solutions and avoid unfair outcomes. Nonetheless, the intervention of the praetor became indispensable in many cases, which leads to the study of a series of additional remedies which modified the practical solutions offered by jurists. In this chapter, attention will be paid to those praetorian remedies which modified the outcome prescribed by the ius civile. A revision of this problem is justified considering that scholars have often misunderstood the significance of the transfer of ownership by a non-owner for the ius civile. Since it has been shown that a non-owner could transfer Quiritary ownership under certain circumstances, it becomes imperative to determine the significance of the praetor’s intervention in the context of the transfer of ownership by a non- owner.
1. Actio Publiciana
a. D. 6,2,14.
The actio Publiciana would be granted by the praetor in a great variety of situations in order to enable an acquirer who had not become owner according to the ius civile – and therefore could not resort to the rei vindicatio – to recover the possession of the object in case of losing it1. One of the applications of the
actio Publiciana concerning an alienation carried out through an – originally –
authorized non-owner is to be found in a text of Ulpian which conveys the opinion of Papinian:
1 On the active legal standing for the actio Publiciana, see Apathy, Die publizianische Klage
(1981), p. 12-13; Apathy, Publiciana ohne Ersitzungsbesitz (1984), p. 749-758; Wubbe, Ergo
D. 6,2,14 (Ulp. 16 ed.): Papinianus libro sexto quaestionum scribit: Si quis prohibuit vel denuntiavit ex causa venditionis tradi rem, quae ipsius voluntate a procuratore fuerit distracta, et is nihilo minus tradiderit, emptorem tuebitur praetor, sive possideat sive petat rem. Sed quod iudicio empti procurator emptori praestiterit, contrario iudicio mandati consequetur: potest enim fieri, ut emptori res auferebatur ab eo, qui venire mandavit, quia per ignorantiam non est usus exceptione, quam debuit opponere, veluti ‘si non auctor meus ex voluntate tua vendidit’2.
As explained above3, this fragment deals with a case where the owner initially
authorizes his procurator, in the context of a contract of mandate, to sell an object belonging to him. However, after the sale has been concluded, the owner decides to revoke his authorization. Despite the owner’s prohibition, the
procurator delivers the object to the buyer, who will then be protected by the
praetor either if he possesses or if he reclaims the object (sive possideat sive petat
rem). While the text does not explicitly say that he may recover through the actio Publiciana, there is little doubt on the point, considering not only that the text is
inserted in the Digest under the title “De Publiciana in rem actione”, but also that Lenel’s Palingenesia locates it under the same title in Ulpian’s work4. Moreover,
an old scholion of the Basilica explicitly declares that the praetor in this case grants the Publiciana5. The text also mentions that the acquirer may oppose the
exceptio si non auctor meus ex voluntate tua vendidit against the owner. The
possibility of using this defence is introduced in a rather cumbersome way, since we are told that if the acquirer does not make use of this exception he may hold the procurator – with whom he concluded the sale – liable, which in turn will grant the procurator an actio mandati contraria against the owner who originally authorized the sale. It is clear that ownership was not transferred in the first place because the delivery was not performed voluntate domini, since the owner withdrew his authorization before the delivery took place6. In this context it is
however more enigmatic that the praetor would be willing to protect the
2 D. 6,2,14: “Papinian, in the sixth book of his Questions, writes: Where, at “A’s” request,
something of his has been sold by his procurator and “A” then forbids delivery of the thing sold, or notifies to that effect, but the procurator nevertheless delivers it, the praetor will protect the buyer, whether he is in possession or is suing for the thing. If the procurator incurs liability to the buyer in an action on the sale, he may sue “A” by actio contraria on the mandate. It may happen that the principal who gave the mandate to sell recovers the thing from the buyer, because the latter, through ignorance, has failed to raise a defence which he ought to have pleaded, such as ‘unless the seller to me sold at your request’” (transl. Watson).
3 See in particular Chapter 2, Section 1(a) above.
4 Lenel, Paling. (1889) II, col. 514, under the rubric “De Publiciana in rem actione”.
5 BS 902, 30-31 (Sch. ad Bas. 15,2,14,2): ουτ στι δίδοται α τ κα νεμ ν παραγρα
κπεσόντι τ νομ ου ικιαν .
6 Burdese, Potestas alienandi (2009), p. 22; Sansón, La transmisión (1998), p. 99.
transferee despite the fact that he acquired invito domino. In order to determine the reason for the praetorian protection, it is essential to examine some difficult aspects of the case7.
The first odd feature of this case is that, while the non-owner delivers invito
domino, there is no reference to the existence of furtum, which would render the
delivered object a res inhabilis for usucapion. This has led some scholars to assume that the text must have dealt with a piece of land8, where the possibility of furtum
was excluded. There is however no reference to this in the text, which deals simply with a res9. One could also think that the non-owner delivered the object
before he had notice of the owner’s prohibition, which could exclude the existence of any dolus malus or animus furandi. The text, however, does not allow this interpretation, since we are told that the owner forbade or notified the transferor (prohibuit vel denuntiavit) and that the latter nonetheless – i.e. despite the prohibition – delivered it (nihilo minus tradiderit). Considering this, the best interpretation may be that this delivery can indeed be considered a case of furtum, since the transferor acts openly against the owner’s authorization, but that nonetheless the praetor decides to grant the Publiciana. It is in fact not uncommon that the Publiciana would be granted to an acquirer who did not have the possessio ad usucapionem, as Apathy has demonstrated10. Moreover, the sources
present other cases, such as D. 39,5,2511, where the acquirer will be protected by
the praetor – in this case, through an exceptio doli – despite the fact that the unauthorized delivery rendered the thing a res furtiva. Accordingly, there is no incompatibility between the existence of furtum and the praetorian protection. Another point which remains problematic is whether the delivery took place
nomine alieno or nomine proprio. Already Voci claimed that the ignorance of the
acquirer which leads him not to make use of the exception (per ignorantiam non est
usus exceptione) would show that he was unaware of the fact that he had acquired
by a procurator, which would in turn show that the latter had delivered the object
nomine proprio, without mentioning that he was acting on behalf of someone
else12. As shown above13, Miquel and Sansón would follow this interpretation,
which fits their own theories concerning the importance of the contemplatio
domini in order to distinguish the legal grounds for the transfer of ownership by a
non-owner14. One may however hardly derive from this text that the transferee
was necessarily unaware of who the principal was, since we are merely told that it may happen (potest enim fieri…) that the buyer was in a state of ignorance. This is
7 For a detailed analysis of the facts surrounding the case see further Krampe, Emptorem
tuebitur praetor (2005), p. 183-186.
8 Von Tuhr, Actio de in rem verso (1895), p. 101.
9 Krampe, Emptorem tuebitur praetor (2005), p. 183-184.
10 Apathy, Publiciana ohne Ersitzungsbesitz (1984), p. 749-758
11 See on this text Chapter 4, Section 5 below.
12 Voci, Modi di acquisto (1952), p. 85-86.
13 Chapter 2, Section 5.
ACTIO PUBLICIANA D. 6,2,14 (Ulp. 16 ed.): Papinianus libro sexto quaestionum scribit:
Si quis prohibuit vel denuntiavit ex causa venditionis tradi rem, quae ipsius voluntate a procuratore fuerit distracta, et is nihilo minus tradiderit, emptorem tuebitur praetor, sive possideat sive petat rem. Sed quod iudicio empti procurator emptori praestiterit, contrario iudicio mandati consequetur: potest enim fieri, ut emptori res auferebatur ab eo, qui venire mandavit, quia per ignorantiam non est usus exceptione, quam debuit opponere, veluti ‘si non auctor meus ex voluntate tua vendidit’2.
As explained above3, this fragment deals with a case where the owner initially
authorizes his procurator, in the context of a contract of mandate, to sell an object belonging to him. However, after the sale has been concluded, the owner decides to revoke his authorization. Despite the owner’s prohibition, the
procurator delivers the object to the buyer, who will then be protected by the
praetor either if he possesses or if he reclaims the object (sive possideat sive petat
rem). While the text does not explicitly say that he may recover through the actio Publiciana, there is little doubt on the point, considering not only that the text is
inserted in the Digest under the title “De Publiciana in rem actione”, but also that Lenel’s Palingenesia locates it under the same title in Ulpian’s work4. Moreover,
an old scholion of the Basilica explicitly declares that the praetor in this case grants the Publiciana5. The text also mentions that the acquirer may oppose the
exceptio si non auctor meus ex voluntate tua vendidit against the owner. The
possibility of using this defence is introduced in a rather cumbersome way, since we are told that if the acquirer does not make use of this exception he may hold the procurator – with whom he concluded the sale – liable, which in turn will grant the procurator an actio mandati contraria against the owner who originally authorized the sale. It is clear that ownership was not transferred in the first place because the delivery was not performed voluntate domini, since the owner withdrew his authorization before the delivery took place6. In this context it is
however more enigmatic that the praetor would be willing to protect the
2 D. 6,2,14: “Papinian, in the sixth book of his Questions, writes: Where, at “A’s” request,
something of his has been sold by his procurator and “A” then forbids delivery of the thing sold, or notifies to that effect, but the procurator nevertheless delivers it, the praetor will protect the buyer, whether he is in possession or is suing for the thing. If the procurator incurs liability to the buyer in an action on the sale, he may sue “A” by actio contraria on the mandate. It may happen that the principal who gave the mandate to sell recovers the thing from the buyer, because the latter, through ignorance, has failed to raise a defence which he ought to have pleaded, such as ‘unless the seller to me sold at your request’” (transl. Watson).
3 See in particular Chapter 2, Section 1(a) above.
4 Lenel, Paling. (1889) II, col. 514, under the rubric “De Publiciana in rem actione”.
5 BS 902, 30-31 (Sch. ad Bas. 15,2,14,2): ουτ στι δίδοται α τ κα νεμ ν παραγρα
κπεσόντι τ νομ ου ικιαν .
6 Burdese, Potestas alienandi (2009), p. 22; Sansón, La transmisión (1998), p. 99.
transferee despite the fact that he acquired invito domino. In order to determine the reason for the praetorian protection, it is essential to examine some difficult aspects of the case7.
The first odd feature of this case is that, while the non-owner delivers invito
domino, there is no reference to the existence of furtum, which would render the
delivered object a res inhabilis for usucapion. This has led some scholars to assume that the text must have dealt with a piece of land8, where the possibility of furtum
was excluded. There is however no reference to this in the text, which deals simply with a res9. One could also think that the non-owner delivered the object
before he had notice of the owner’s prohibition, which could exclude the existence of any dolus malus or animus furandi. The text, however, does not allow this interpretation, since we are told that the owner forbade or notified the transferor (prohibuit vel denuntiavit) and that the latter nonetheless – i.e. despite the prohibition – delivered it (nihilo minus tradiderit). Considering this, the best interpretation may be that this delivery can indeed be considered a case of furtum, since the transferor acts openly against the owner’s authorization, but that nonetheless the praetor decides to grant the Publiciana. It is in fact not uncommon that the Publiciana would be granted to an acquirer who did not have the possessio ad usucapionem, as Apathy has demonstrated10. Moreover, the sources
present other cases, such as D. 39,5,2511, where the acquirer will be protected by
the praetor – in this case, through an exceptio doli – despite the fact that the unauthorized delivery rendered the thing a res furtiva. Accordingly, there is no incompatibility between the existence of furtum and the praetorian protection. Another point which remains problematic is whether the delivery took place
nomine alieno or nomine proprio. Already Voci claimed that the ignorance of the
acquirer which leads him not to make use of the exception (per ignorantiam non est
usus exceptione) would show that he was unaware of the fact that he had acquired
by a procurator, which would in turn show that the latter had delivered the object
nomine proprio, without mentioning that he was acting on behalf of someone
else12. As shown above13, Miquel and Sansón would follow this interpretation,
which fits their own theories concerning the importance of the contemplatio
domini in order to distinguish the legal grounds for the transfer of ownership by a
non-owner14. One may however hardly derive from this text that the transferee
was necessarily unaware of who the principal was, since we are merely told that it may happen (potest enim fieri…) that the buyer was in a state of ignorance. This is
7 For a detailed analysis of the facts surrounding the case see further Krampe, Emptorem
tuebitur praetor (2005), p. 183-186.
8 Von Tuhr, Actio de in rem verso (1895), p. 101.
9 Krampe, Emptorem tuebitur praetor (2005), p. 183-184.
10 Apathy, Publiciana ohne Ersitzungsbesitz (1984), p. 749-758
11 See on this text Chapter 4, Section 5 below.
12 Voci, Modi di acquisto (1952), p. 85-86.
13 Chapter 2, Section 5.
why authors like Benke consider the ignorance of the relation between owner and seller as a mere possibility15. Moreover, if the acquirer was necessarily
unaware of who the principal was, he would hardly ever be able make use of the said exception against the owner.
There is an additional difficulty regarding the transferee’s ignorance as mentioned in the text, since it is not clear whether it deals with an ignorantia facti – concerning either the fact that he was buying from a procurator or that the owner had forbidden the sale – or an ignorantia iuris – regarding whether he did or did not have a defence at his disposal. According to most scholars, the ignorance concerned the fact that the transferor was acting under the instructions of the owner who later claims the object back16. Winkel17, however, considers
that the text could be referred to an error iuris, which would be dealt with in the context of the claims arising between owner/principal, non-owner/seller and acquirer/buyer, showing that if the latter did not know of the existence of the exception, he could nonetheless make the seller liable through an actio empti. It seems in any case difficult to distinguish whether the buyer did not use the exception because he ignored the facts on which it was based or simply ignored the existence of this exception, since it would appear that in either case he could nonetheless claim liability from the seller. For the present research it is only essential to highlight that it is not decisive for the outcome of the case whether the transferor acted nomine alieno or nomine proprio.
Having a clear outlook on the case, it becomes possible to determine the legal grounds for the praetorian protection, which is not explicitly expressed in the text. A considerable number of theories have been offered at this point. Voci thought that the praetorian protection was based on the acquirer’s good faith, who would have ignored the owner’s prohibition18, but it is hard to see how the
bona fides of the acquirer merits such an exceptional protection in this particular
case. Others consider that the owner’s voluntas at the traditio would be presumed by his voluntas at the sale. Guzmán, for instance, makes this claim under the general idea that only the intent as given at the iusta causa traditionis was relevant for the transfer of ownership, which implies that a revocation of the authorization after the sale was concluded would not prevent the transfer of ownership19. This idea, however, crashes against the abundant evidence which
shows that only the intent at the moment of the delivery is relevant to determine the transfer of ownership20. Sansón also considers that the voluntas for the delivery
15 Benke, Zu Papinians actio (1988), p. 630.
16 Schlossmann, Stellvertretung (1900) I, p. 176, 179-180; Burdese, Autorizzazione (1950),
p. 51; Voci, Modi di acquisto (1952), p. 85; Benke, Zu Papinians actio (1988), p. 630; Nebrera, Ἡ τραδιτίων (1989), p. 132-133 n. 7; Babusiaux, Id quod actum est (2006), p. 151- 152.
17 Winkel, Error iuris (1985), p. 136-137.
18 Voci, Modi di acquisto (1952), p. 86.
19 Guzmán, DPR (2013) I, p. 645-646.
ACTIO PUBLICIANA
why authors like Benke consider the ignorance of the relation between owner and seller as a mere possibility15. Moreover, if the acquirer was necessarily
unaware of who the principal was, he would hardly ever be able make use of the