- 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-lat1:4.1.7.pr-4.1.7.1
- Generated
- Humanitext Reader · reader.humanitext.ai · 2026-11-07
The author explains the criteria for granting restoration of status in cases of default judgments against absent persons and victims of fraud, citing a rescript of the deified Antoninus on relief based on equity.
[MARCELLUS libro tertio digestorum.]
[MARCELLUS, Digests, book 3]
Diuus Antoninus Marcio Auito praetori de succurrendo ei, qui absens rem amiserat, in hanc sententiam rescripsit: 'Etsi nihil facile mutandum est ex sollemnibus, tamen ubi aequitas euidens poscit, subueniendum est. itaque si citatus non respondit et ob hoc more pronuntiatum est, confestim autem pro tribunali te sedente1 adiit: existimari potest non sua culpa sed parum exaudita uoce praeconis2 defuisse, ideoque restitui potest.'
The deified Antoninus replied by rescript to the praetor Marcius Avitus on relieving one who had lost his property while absent, to this effect: “Although nothing should easily be changed from solemn rules, nevertheless where manifest equity demands, relief must be given. Therefore, if a person summoned did not answer and on this account judgment was pronounced according to custom, but he came immediately while you were sitting on the tribunal, he can be deemed to have been absent not by his own fault but because the voice of the herald was not heard well enough, and therefore he can be restored to his former position.”
Nec intra has solum species consistet huius generis auxilium: etenim deceptis sine culpa sua, maxime si fraus ab aduersario interuenerit, succurri oportebit, cum etiam de dolo malo actio competere soleat, et boni praetoris est3 potius restituere litem, ut et ratio et aequitas postulabit, quam actionem famosam constituere, ad quam tunc demum descendendum est, cum remedio locus esse non potest.
Nor will relief of this kind consist only in these instances: for indeed, those who have been deceived without their own fault, especially if fraud has intervened on the part of the adversary, ought to be relieved, since even an action for fraud is usually available; and it is the part of a good praetor to restore the lawsuit, as both reason and equity shall demand, rather than to allow an action involving infamy, to which recourse must be had only then when there can be no place for a remedy.
- 4.1.7.prpro tribunali te sedente
An ablative absolute construction meaning "while you were sitting on the tribunal." te (ablative of the personal pronoun) functions as the logical subject, and sedente (present participle in the ablative) as the predicate. The prepositional phrase pro tribunali indicates the location of the action expressed by the participle.
- 4.1.7.prparum exaudita uoce praeconis
An ablative absolute (or ablative of cause) meaning "because the voice of the herald was not heard well enough." The perfect passive participle exaudita is modified by parum and agrees with the noun uoce, expressing the cause of defuisse (having been absent).
- 4.1.7.1boni praetoris est
The combination of the copula est with the possessive genitive boni praetoris (of a good praetor) denotes "it is the duty/part of..." or "it is characteristic of..." The subject of the sentence is the comparative infinitival structure comparing restituere litem and actionem famosam constituere.