- 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-lat1:9.4.21.pr-9.4.21.6
- Generated
- Humanitext Reader · reader.humanitext.ai · 2026-11-15
Ulpian discusses the owner's liability for a slave's wrongful acts, examining the relationship between the refusal to accept the suit and noxal surrender, the defense of absent slaves, the definition of "being in power," and the oaths and exceptions associated with it.
[ULPIANUS libro uicensimo tertio ad edictum.]
[ULPIANUS, Book 23 of the Commentary on the Edict]
Quotiens dominus ex noxali causa conuenitur, si nolit suscipere iudicium, in ea causa res est, ut debeat noxae dedere1 eum, cuius nomine iudicium non suscipitur: aut si2 id non faciat, iudicium suscipiet omnimodo, sed non alias condemnabitur, quam si in potestate habeat doloue malo fecerit, quo minus haberet.
Whenever an owner is sued on account of a noxal cause, if he does not wish to accept the joinder of issue, the situation is such that he must surrender for noxa the person in whose name the joinder of issue is not accepted; or if he does not do this, he shall by all means accept the joinder of issue, but he shall not be condemned otherwise than if he has the person in his power or has acted with dolo malo so that he should not have him.
Eos, quorum nomine noxali iudicio agitur, etiam absentes defendi posse placuit, sed hoc ita demum, si proprii sint serui: nam si alieni, praesentes esse oportet, aut si dubitetur, utrum proprii sint an alieni. quod ita puto accipiendum, ut si constet3 uel bona fide seruire, etiam absentes possint defendi.
It has been decided that those in whose name an action is brought in a noxal judgment can be defended even when absent, but this only if they are the owner’s own slaves; for if they belong to another, they must be present, or also if it is doubted whether they are one’s own or another’s. I think this should be understood in such a way that if it is clear that they serve in good faith, they can be defended even when absent.
Praetor ait: 'Si is in cuius potestate esse dicetur negabit se in sua potestate seruum habere: utrum actor uolet,4 uel deierare iubebo in potestate sua non esse neque se dolo malo fecisse, quo minus esset, uel iudicium dabo sine noxae deditione. '
The praetor says: “If he who is said to have the slave in his power denies that he has the slave in his power, I will, according to what the plaintiff prefers, either order him to swear that the slave is not in his power and that he has not acted with dolo malo so that he should not be, or I will grant an action without the option of noxal surrender.”
'In potestate' sic accipere debemus, ut facultatem et potestatem exhibendi eius habeat: ceterum si in fuga sit uel peregre, non uidebitur esse in potestate.
We must understand “in power” in such a way that he has the capacity and power to produce him; however, if the slave is in flight or abroad, he will not be deemed to be in power.
Quod si reus iurare nolit, similis est ei, qui neque defendit absentem neque exhibet: qui condemnantur quasi contumaces.
But if the defendant is unwilling to swear, he is similar to one who neither defends an absent person nor produces him; and such persons are condemned as contumacious.
Si tutor uel curator extent, ipsi iurare debent in potestate domini non esse: si autem procurator sit, dominus ipse iuret necesse est.
If a guardian or curator is present, they themselves must swear that the slave is not in the power of the owner; but if there is an agent, it is necessary for the owner himself to swear.
Si iusiurandum exegit actor reusque iurauit, deinde postea noxali uelit actor experiri, uidendum est, an exceptio iurisiurandi debeat aduersus actorem dari. et Sabinus putat non esse dandam, quasi de alia re sit iuratum, hoc est tunc non fuisse in potestate: modo uero cum in potestate deprehendatur, de facto eius posse agi. Neratius quoque dicebat post exactum iusiurandum5 posse actorem detracta noxae deditione experiri, si modo hoc contendat, posteaquam iuratum est coepisse in potestate habere.
If the plaintiff demanded the oath and the defendant swore, and then afterwards the plaintiff wishes to sue on a noxal action, we must see whether the defense of the oath ought to be granted against the plaintiff. And Sabinus thinks that it should not be granted, on the ground that the oath was taken about another matter, that is, that the slave was not in his power at that time; but when he is now found to be in his power, an action can be brought on account of his deed. Neratius also used to say that after the oath has been demanded, the plaintiff can sue with the option of noxal surrender removed, provided only that he contends that the owner began to have the slave in his power after the oath was taken.
- 9.4.21.prin ea causa res est, ut debeat noxae dedere
The impersonal expression in ea causa res est, ut... means "the situation is such that..." or "it comes to the point that...". The ut clause with the subjunctive debeat serves to explain this state.
- 9.4.21.prnon alias condemnabitur, quam si
This represents a restrictive condition ("he shall not be condemned otherwise than if..."), which effectively means "he will only be condemned if...".
- 9.4.21.1quod ita puto accipiendum, ut si constet
quod is a connecting relative pronoun referring to the preceding rule about the presence of another's slave. It is modified by the ut clause (ut si constet... possint) to define how this rule should be interpreted.
- 9.4.21.2utrum actor uolet
A construction of utrum... uel... uel.... The clause utrum actor uolet ("whichever the plaintiff wishes") functions as a conditioning clause determining the choice between the two subsequent measures of the praetor (deierare iubebo... or iudicium dabo...).
- 9.4.21.6post exactum iusiurandum
The preposition post with the noun iusiurandum modified by the perfect passive participle exactum (the ab urbe condita construction), meaning "after the demanding of the oath" or "after the oath has been demanded".