The Interdictum de Precaria possessione or de Precario applied to a case of Precarium. It is Precarium when a man permits another to exercise ownership over his property, but retains the right of demanding the property back when he pleases. It is called Precarium because the person who received such permission usually obtained it by request (prece); though request was not necessary to constitute Precarium, for it might arise by tacit permission (Paulus, S. R. V. tit. 6 s11). The person who received the detention of the thing, obtained at the same time a legal possession, unless provision to the contrary was made by agreement. In either case the permission could at any time be recalled, and the possessio, which in p644its origin was justa, became injusta, vitiosa, as soon as restitution was refused. Restitution could be claimed by the Interdictum de Precario, precisely as in the case of Vis; and the sole foundation of the right to this Interdict was a vitiosa possessio, as just explained. The Precarium was never viewed as a matter of contract. The Interdictum de Precario originally applied to land only, but it was subsequently extended to movable things. The obligation imposed by the Edict was to restore the thing, but not its value, in case it was lost, unless dolus or lata culpa could be proved against the defendant. But from the time that the demand is made against the defendant, he is in mora, and, as in the case of the other Interdicts, he is answerable for all culpa, and for the fruits or profits of the thing; and generally, he is bound to place the plaintiff in the condition in which he would have been, if there had been no refusal. No exceptions were allowed in the case of a Precarium.
The origin of the Precarium is referred by Savigny to the relation which subsisted between a patronus and his cliens, to whom the patronus gave the use of a portion of the ager publicus. If the cliens refused to restore the land upon demand, the patronus was entitled to the Interdictum de Precario. As the relation between the patronus and the cliens was analogous to that between a parent and his child, it followed that there was no contract between them, and the patron's right to demand the land back was a necessary consequence of the relation between him and his cliens (Festus, s.v. Patres). The precarium did not fall into disuse when the old ager publicus ceased to exist, and in this respect it followed the doctrine of possessio generally [Agrariae Leges]. It was in fact extended and applied to other things, and, among them, to the case of pledge [Pignus].
07.08.2007. (06:47)
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NEMANJA
The Interdictum de Precaria possessione or de Precario applied to a case of Precarium. It is Precarium when a man permits another to exercise ownership over his property, but retains the right of demanding the property back when he pleases. It is called Precarium because the person who received such permission usually obtained it by request (prece); though request was not necessary to constitute Precarium, for it might arise by tacit permission (Paulus, S. R. V. tit. 6 s11). The person who received the detention of the thing, obtained at the same time a legal possession, unless provision to the contrary was made by agreement. In either case the permission could at any time be recalled, and the possessio, which in p644its origin was justa, became injusta, vitiosa, as soon as restitution was refused. Restitution could be claimed by the Interdictum de Precario, precisely as in the case of Vis; and the sole foundation of the right to this Interdict was a vitiosa possessio, as just explained. The Precarium was never viewed as a matter of contract. The Interdictum de Precario originally applied to land only, but it was subsequently extended to movable things. The obligation imposed by the Edict was to restore the thing, but not its value, in case it was lost, unless dolus or lata culpa could be proved against the defendant. But from the time that the demand is made against the defendant, he is in mora, and, as in the case of the other Interdicts, he is answerable for all culpa, and for the fruits or profits of the thing; and generally, he is bound to place the plaintiff in the condition in which he would have been, if there had been no refusal. No exceptions were allowed in the case of a Precarium.
The origin of the Precarium is referred by Savigny to the relation which subsisted between a patronus and his cliens, to whom the patronus gave the use of a portion of the ager publicus. If the cliens refused to restore the land upon demand, the patronus was entitled to the Interdictum de Precario. As the relation between the patronus and the cliens was analogous to that between a parent and his child, it followed that there was no contract between them, and the patron's right to demand the land back was a necessary consequence of the relation between him and his cliens (Festus, s.v. Patres). The precarium did not fall into disuse when the old ager publicus ceased to exist, and in this respect it followed the doctrine of possessio generally [Agrariae Leges]. It was in fact extended and applied to other things, and, among them, to the case of pledge [Pignus].
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