- 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-lat1:4.6.21.pr-4.6.21.3
- Generated
- Humanitext Reader · reader.humanitext.ai · 2026-11-09
Ulpian explains the praetorian clause on restitution against those who, while being absent and undefended, acquired property by usucapion, lost rights by non-use, or were released from actions due to time limits, defining the requirements for relief and what constitutes being "defended."
[ULPIANUS libro duodecimo ad edictum.]
[ULPIANUS in the twelfth book on the Edict.]
'Item', ait praetor, 'si quis usu suum fecisset, aut quod non utendo sit amissum consecutus, actioneue qua solutus ob id, quod dies eius exierit,1 cum absens non defenderetur.' quam clausulam praetor inseruit, ut quemadmodum succurrit supra scriptis personis, ne capiantur, ita et aduersus ipsas succurrit, ne capiant.2
”Likewise,” says the praetor, “if anyone has made something his own by long-term use, or has acquired what was lost by non-use, or is released from an action by which he was bound on account of its term having expired, when he, being absent, was not defended.” The praetor inserted this clause so that, just as he helps the above-mentioned persons lest they be deprived, so also he helps against them lest they deprive.
Et erit notandum, quod plus praetor expressit, cum aduersus eos restituit, quam cum ipsis subuenit: nam hic non certas personas enumerauit aduersus quas subuenit, ut supra, sed adiecit clausulam, qua omnes qui absentes non defenduntur complexus est.
And it should be noted that the praetor expressed more when he restored against them than when he helped them: for here he did not enumerate certain persons against whom he helps, as above, but added a clause by which he embraced all who, being absent, are not defended.
Haec autem restitutio locum habet, siue per se siue per subiectas sibi personas usu adquisierunt, qui absentes non defendebantur, et ita, si nemo eorum erat defensor. nam si fuit procurator, cum habueris quem conuenias, non debet inquietari. ceterum si non existebat defensor, aequissimum erat subueniri, eo potius, quod eorum qui non defenduntur, si quidem latitent, praetor ex edicto pollicetur in bona eorum mittere, ut si res exegerit etiam distrahantur, si uero non latitent, licet non defendantur, in bona tantum mitti.3
Now this restitution takes place whether they acquired by long-term use through themselves or through persons subject to them, when they, being absent, were not defended, and this is so if none of them had a defender. For if there was a procurator, since you had someone to sue, he ought not to be disturbed. But if no defender existed, it was most equitable that help should be given, especially since the praetor promises in his Edict to put into possession of the property of those who are not defended, if indeed they are in hiding, so that if the matter requires it, they may even be sold, but if they are not in hiding, although they are not defended, only to put into possession.
Defendi autem non is uidetur, cuius se defensor ingerit,4 sed qui requisitus ab actore non est defensioni defuturus, plenaque defensio accipietur, si et iudicium non detrectetur et iudicatum solui satisdetur.
Moreover, a person is not deemed to be defended whose defender forces himself forward, but one who, when requested by the plaintiff, is not going to fail in his defense; and a full defense will be accepted if iudicium is not declined and security is given for the payment of the judgment.
- 4.6.21.practioneue qua solutus ob id, quod dies eius exierit
"or is released from an action by which he was bound because its term has expired." "actione" is an ablative of separation (or respect) taken with "solutus". "qua" is the relative pronoun in the ablative, referring to "actione". "eius" in "dies eius" refers to "actionis" (of the action).
- 4.6.21.prne capiantur, ita et aduersus ipsas succurrit, ne capiant
A contrast using the passive and active forms of "capere" (to take/acquire, or to be disadvantaged). "ne capiantur" means "lest they lose their rights (suffer loss)" through usucapion, while "ne capiant" means "lest they acquire (gain advantage at the expense of others)".
- 4.6.21.2eo potius, quod... praetor ex edicto pollicetur in bona eorum mittere... in bona tantum mitti
"eo potius, quod..." introduces a causal clause meaning "all the more because...". "mittere" is an active infinitive where "praetor pollicetur [se] mittere" (the praetor promises [that he will] send [the plaintiff into possession of the goods]). In the second clause, "mitti" is a passive infinitive, meaning "only to be put into possession".
- 4.6.21.3cuius se defensor ingerit
The relative pronoun in the genitive "cuius" modifies "defensor", and "se ingerit" means "thrusts himself forward" or "meddles". It refers to a person who voluntarily intervenes in a lawsuit as a defender without the authorization or consent of the principal.
Translated by Gemini 3.5 Flash (published 2026-07-12) · Revision history (1, latest 2026-09-21)
- 2026-09-21 AI review — source 1