- 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-lat1:5.1.74.pr-5.1.74.2
- Generated
- Humanitext Reader · reader.humanitext.ai · 2026-11-10
This passage discusses the judge's obligation to render judgment and the extension of their jurisdiction by agreement, as well as the invalidity of a trial accepted after the defendant's death and the resulting remedies for the defender and the heir.
[IULIANUS libro quinto digestorum.]
[JULIANUS, in the Fifth Book of the Digests.]
De qua re cognouerit iudex, pronuntiare quoque cogendus erit.
On whatever matter the judge has taken cognizance, he shall also be compelled to pronounce judgment.
Iudex, qui usque ad certam summam iudicare iussus est, etiam de re maiori iudicare potest, si inter litigatores conueniat.
A judge, who has been ordered to judge up to a certain sum, can also judge on a matter of greater value, if it is agreed between the litigants.
Cum absentem defendere uellem, iudicium mortuo iam eo1 accepi et condemnatus solui: quaesitum est an heres liberaretur, item quae actio mihi aduersus eum competeret. respondi iudicium, quod iam mortuo debitore per defensorem eius accipitur, nullum esse et ideo heredem non liberari: defensorem autem, si ex causa iudicati soluerit, repetere2 quidem non posse, negotiorum tamen gestorum ei actionem competere aduersus heredem: qui3 sane exceptione doli mali tueri se possit, si ab actore conueniatur.
When I wished to defend an absent person, I accepted the trial when he was already dead, and, having been condemned, I paid: the question was asked whether the heir was released, and likewise what action was available to me against him. I replied that a trial which is accepted through a defender when the debtor is already dead is null, and therefore the heir is not released; but that the defender, although he cannot indeed seek recovery if he paid on the basis of the judgment, nevertheless has an action for business management against the heir, who indeed can defend himself by the plea of fraud if he is sued by the plaintiff.
- 5.1.74.2mortuo iam eo
An ablative absolute construction consisting of the pronoun eo (referring to the absent defendant) as the logical subject and mortuo (perfect participle of mori), indicating the circumstance existing at the time of accepting the trial.
- 5.1.74.2repetere
Used in the technical legal sense of seeking recovery or demanding back a payment made without legal obligation (condictio). The direct object (the amount paid) is omitted as it is clear from the context.
- 5.1.74.2qui
The relative pronoun qui refers back to the immediate antecedent heredem (the heir). Since the defender has already paid the plaintiff, the heir can block any subsequent lawsuit (conueniatur) by the plaintiff by using the plea of fraud (exceptio doli mali).