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Justinian I · The Digest of Justinian §1.3.30.pr

Definition of Fraud upon the Law from Letter and Intent

Passage 49 of 9271 · Latin

Summary

Defining fraud upon the law (fraus legi) as doing what the law did not wish but did not forbid, distinguishing it from acting contrary to the law (contra legem) just as the written letter is distinguished from the intention.

[ULPIANUS libro IIII ad edictum. ] §1.3.30.prFraus enim legi fit, ubi quod fieri noluit, fieri autem non uetuit, id fit: et quod distat ῥητὸν ἀπὸ διανοίας, hoc distat fraus ab eo, quod contra legem fit.
[ULPIANUS, On the Edict, book 4] For a fraud upon the law is committed when that is done which the law did not wish to be done, but yet did not forbid to be done; and as much as the spoken word differs from the intention, so much does fraud differ from that which is done contrary to the law.

Notes

  1. §1.3.30.prnoluit — The subject of noluit and uetuit is lex (the law) understood from the context, as implied by fraus legi (fraud upon the law).
  2. §1.3.30.prquod distat ... hoc distat — A correlative construction where quod and hoc represent a proportional comparison: 'as much as A differs from B, so much does C differ from D.' The neuter relative pronoun quod is used adverbially ('to the extent that') and corresponds to the demonstrative hoc.
  3. §1.3.30.prῥητὸν ἀπὸ διανοίας — Greek rhetorical and legal terminology corresponding to the Latin contrast between scriptum (the written word/letter of the law) and voluntas or sententia (the intention/spirit of the law). ῥητόν means 'what is stated/written', while διάνοια means 'thought/intention'.

Cite this passage

Justinian I, The Digest of Justinian §1.3.30.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:1.3.30.pr

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