Bonfante, Vacca, Ankum: acquisition of ownership of res mancipi abandoned by their owner, Pomp. D. 41,7,5pr.

Abstract

Summary Pomponius, Digest 41,7,5pr., presents many difficulties. It holds, inter alia, that if the possessor of a thing abandoned by its owner, did not have that thing in bonis, the person who bought it from him, knowing that it had been abandoned, will usucapt it. But this seems to conflict with § 1, asserting that the acquirer of an abandoned thing becomes its dominus at once, without usucapio. Bonfante saw that the principium concerns only res mancipi and § 1 only res nec mancipi. Vacca did not agree, but subscribed to part of Bonfante’s interpretation. Both Bonfante and Vacca, however, introduced an element not mentioned by Pomponius: that the selling possessor ignored that the thing had been abandoned by its owner and, instead, thought the thing was res aliena. Ankum rejected that introduction and gave an interpretation (and reconstruction) of the fragment without the contested element. It is argued that Ankum’s interpretation should prevail.