Note esegetiche in tema di acquisto del possesso da parte del pupillo

Abstract

The author deals with the well-known problem concerning the so-called direct acquisition of possession by a pupillus in classical law. An examination of the sources on the subject, substantially genuine and mostly from Paul, shows that there were disputes among jurists and suggests distinguishing between two categories of pupilli: on the one hand the pupils infantes and infanti proximi and on the other the pupils pubertati proximi. As for the former, the oldest opinion was probably that they colud not acquire possession because they were incapable of conceiving the conscious will to possess (animus or intellectus possidendi or affectio tenendi or sensus accipiendi possessionem), but later, on grounds of utility, they were allowed to begin to possess with the auctoritas of the tutor (tutore auctore), who exceptionally made up for the pupil’s total lack of animus possidendi. As for the latter, some jurists (as Ofilius, Labeo, Nerva filius, Venuleius and Paulus), relying on consideration of possession as res facti, admitted that they could begin to possess by themselves, while other jurists (probably of the Sabinian school), relying on consideration of possession as res iuris, required for the same purpose the tutor’s authority.