Scope of Fruits and Exemption from Eviction Security — Justinian I, The Digest of Justinian Book 6 (6.1.35.pr–6.1.35.3), Latin & English

[PAULUS libro uicensimo primo ad edictum.]

[PAULUS, in the twenty-first book on the Edict.]

§6.1.35.pr

Et ex diuerso si petitor lite contestata usum fructum legauerit, ex eo tempore, ex quo discessit a proprietate,¹ fructuum rationem non habendam quidam recte putant.

On the other hand, if the plaintiff, after the joinder of issue, has bequeathed the usufruct, some rightly think that from the time he parted with the ownership, no account should be taken of the fruits.

§6.1.35.1

Ubi autem alienum fundum petii et iudex sententia declarauit meum esse, debet etiam de fructibus possessorem condemnare: eodem enim errore² et de fructibus condemnaturum: non debere enim lucro possessoris cedere fructus, cum uictus sit: alioquin, ut Mauricianus ait, nec rem arbitrabitur iudex mihi restitui.³ et quare habeat quod non esset habiturus possessor, si statim possessionem restituisset?

But where I have claimed a land held by another and the judge has declared by his judgment that it is mine, he must also condemn the possessor with respect to the fruits: for by the same error he will also condemn him for the fruits: for the fruits ought not to go to the profit of the possessor, since he has been defeated: otherwise, as Mauricianus says, the judge will not even order the thing to be restored to me. And why should the possessor have what he would not have had if he had restored possession immediately?

§6.1.35.2

Petitor possessori de euictione cauere⁴ non cogitur rei nomine, cuius aestimationem accepit: sibi enim possessor imputare debet, qui non restituit rem.

The plaintiff is not compelled to give security to the possessor against eviction in respect of the thing, the valuation of which he has received: for the possessor, who did not restore the thing, must blame himself.

§6.1.35.3

Eorum quoque, quae sine interitu diuidi non possunt, partem petere posse constat.

It is established that one can also claim a part of those things which cannot be divided without destruction.

Syntax notes4 items

6.1.35.prdiscessit a proprietate
"Parted from the ownership." This refers to the situation where, after the joinder of issue (litis contestatio), the plaintiff has bequeathed the usufruct, thereby separating the usufruct from the ownership and leaving him only with the bare ownership (nuda proprietas). This separation serves as the temporal boundary for accounting for the fruits.
6.1.35.1eodem enim errore
"By the same error." This means that if the judge mistakenly declares a third party's land (alienum fundum) to be the plaintiff's, the judge, to be consistent with this erroneous premise regarding the ownership of the main property, will also condemn the possessor to restore the fruits to the plaintiff under the influence of the same error.
6.1.35.1nec rem arbitrabitur iudex mihi restitui
In classical formulary procedure (especially in a claim for recovery, rei vindicatio), this refers to the order or ruling (arbitrium de restituendo) made by the judge directing the defendant to restore the thing before the final condemnation in money. Here, it introduces Mauricianus' argument that if the fruits are not to be restored, the judge will not even order the restoration of the main thing itself, leaving only pecuniary compensation.
6.1.35.2de euictione cauere
"To give security against eviction." When the plaintiff receives the valuation (aestimatio) of the thing instead of the thing itself, the possessor practically stands in the position of a buyer. However, the plaintiff (the recipient of the valuation) is not obliged to provide security (cautio) against the risk that the possessor might later be evicted by a true owner.

Translated by Gemini 3.5 Flash (published 2026-07-12) · Revision history (1, latest 2026-09-22)

2026-09-22 AI review — source 1

urn:cts:latinLit:phi2806.phi002.humanitext-lat1:6.1.35.pr-6.1.35.3