- Source
- Digesta Iustiniani Augusti. Mommsen, Theodor & Krueger, Paul, editors. Berlin: Weidmann, 1870.
- Translation
- AI-generated (gemini-3.5-flash) — machine translation; may contain errors
- Languages
- 日本語 · English · 简体中文 · 한국어
- CTS URN
- urn:cts:latinLit:phi2806.phi002.humanitext-lat1:2.11.4.pr-2.11.4.5
- Generated
- Humanitext Reader · reader.humanitext.ai · 2026-10-29
Ulpian discusses under what conditions failures to appear are excused, such as capital condemnation, custody, funeral, or enemy captivity, and determines the validity of pre-agreed waivers of exceptions and promises with excessive security.
[ULPIANUS libro septuagensimo quarto ad edictum.]
[ULPIANUS, in the seventy-fourth book on the Edict.]
Sed et si quis rei capitalis1 ante condemnatus iudicio sistere se non potuit, merito huic ignoscitur: rei capitalis condemnatum accipere debemus, qui morte exilioue coercitus est. dixerit aliquis, quo ergo haec exceptio damnato?2 sed respondebitur fideiussoribus eius esse necessariam: aut si forte in exilium salua ciuitate3 abiit, ubi defensori eius exceptio ista proderit.
But also, if anyone, having previously been condemned of a capital crime, was unable to present himself in court, he is deservedly excused; we ought to understand “one condemned of a capital crime” as someone who has been punished with death or exile. Someone might say, “To what purpose, then, is this exception for a condemned man?” But it will be answered that it is necessary for his sureties; or if by chance he has gone into exile with his citizenship preserved, where this exception will be of benefit to his defender.
Illud sciendum est eum, qui idcirco non stetit, quia capitis reus factus est, in ea causa esse, ut exceptione uti non possit: damnato enim datur. plane si uinculis uel custodia militari impeditus ideo non stetit, in ea erit causa, ut exceptione utatur.
It must be known that he who did not appear because he became accused of a capital crime is in such a position that he cannot use the exception; for it is granted to one who has been condemned. Clearly, if he did not appear because he was prevented by chains or military custody, he will be in a position to use the exception.
Praeterea si funere quis domestico impeditus non uenit, debet ei exceptio dari.
Furthermore, if anyone did not come because he was prevented by a funeral in his household, the exception ought to be granted to him.
Item si quis in seruitute hostium fuerit ac per hoc in iudicium non stetit, debet exceptione adiuuari.
Likewise, if anyone was in captivity under the enemy, and for this reason did not appear in court, he ought to be assisted by the exception.
Quaesitum est an possit conueniri, ne ulla exceptio in promissione deserta4 iudicio sistendi causa facta obiciatur: et ait Atilicinus conuentionem istam non ualere. sed ego puto conuentionem istam ita ualere, si specialiter causae exceptionum expressae sint, quibus a promissore sponte renuntiatum est.
The question was asked whether an agreement can be made that no exception shall be raised in a defaulted promise made for the purpose of appearing in court; and Atilicinus says that such an agreement is invalid. But I think that such an agreement is valid only if the grounds of the exceptions, which the promisor voluntarily renounced, are specifically expressed.
Item quaeritur, si quis, cum iudicio sistendi causa satisdare non deberet, satisdato promiserit,5 an fideiussoribus eius exceptio detur. puto interesse, utrum per errorem satisdato promissum est an ex conuentione: si per errorem, dandam fideiussoribus exceptionem: si ex conuentione, minime dandam. nam et Iulianus scribit, si iudicio sistendi causa pluris quam statutum est per ignorantiam promissum fuerit, exceptionem dari debere: si autem ex conuentione tantae summae promissio facta sit, exceptionem pacti conuenti replicatione6 infirmandam Iulianus ait.
Likewise, the question is asked, if anyone, when he was not obliged to give security for appearing in court, promised with security, whether the exception is granted to his sureties. I think it makes a difference whether the promise with security was made through error or by agreement; if through error, that the exception should be granted to the sureties; if by agreement, that it should by no means be granted. For Julian also writes that if, through ignorance, a promise was made for appearing in court for a larger sum than is prescribed, the exception ought to be granted; but if the promise of such an amount was made by agreement, Julian says that the exception is to be invalidated by a replication based on the agreement.
- 2.11.4.prrei capitalis
Genitive of charge or penalty depending on condemnatus, referring to a capital crime or punishment involving death or loss of citizenship.
- 2.11.4.prquo ergo haec exceptio damnato?
An elliptical question consisting of the adverb of purpose quo ("to what end?", "why?") and the dative of advantage damnato ("for the condemned man"), with the verb est or datur being omitted.
- 2.11.4.prsalua ciuitate
Ablative absolute consisting of the noun ciuitate and the adjective salua, meaning "with citizenship preserved." This refers to relegation (relegatio), which did not involve loss of citizenship, in contrast to deportation (deportatio).
- 2.11.4.4in promissione deserta
A prepositional phrase governed by in. The perfect passive participle deserta modifies promissione, meaning "in a defaulted (deserted) promise to appear."
- 2.11.4.5satisdato promiserit
A construction based on the ablative absolute or substantival use, meaning "promised with security (sureties) provided." It describes a situation where one promised to appear with sureties, despite not being obliged to do so.
- 2.11.4.5pacti conuenti replicatione
The genitive pacti conuenti modifies the ablative of instrument replicatione, meaning "by a replication of the agreement." It describes how the plaintiff invalidates the defendant's exception by presenting the agreement made between them as a counter-argument (replicatio).