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Justinian I · The Digest of Justinian §10.3.10.pr-10.3.10.2

Heir's Liability and Praetorian Division of Use

Passage 1705 of 9271 · Latin

Summary

This chunk discusses the liability of a partner's heir in a partition action for the deceased's wrongful acts on common property, the praetorian remedy for partitioning a non-transferable right of use, and the requirements for valuation and security against eviction.

[PAULUS libro uicensimo tertio ad edictum. ] §10.3.10.prItem quamuis legis Aquiliae actio in heredem non competat, tamen hoc iudicio heres socii praestet, si quid defunctus in re communi admisit, quo nomine legis Aquiliae actio nascitur.
[PAULUS, from the twenty-third book on the Edict.] Likewise, although the action under the Aquilian law does not lie against an heir, nevertheless, in this action, the heir of a partner must make amends if the deceased committed any act in respect of the common property by reason of which an action under the Aquilian law arises.
§10.3.10.1Si usus tantum noster sit, qui neque uenire neque locari potest, quemadmodum diuisio potest fieri in communi diuidundo iudicio, uideamus.
If only a right of use is ours, which can neither be sold nor leased, let us see how a division can be made in an action for partition of common property.
sed praetor interueniet et rem emendabit, ut, si iudex alteri usum adiudicauerit non uideatur alter qui mercedem accipit non uti, quasi plus faciat qui uidetur frui, quia hoc propter necessitatem fit.
But the praetor will intervene and remedy the matter, so that, if the judge awards the use to one party, the other who receives a compensation may not be deemed not to use it, as if the one who seems to enjoy it were doing more, because this is done out of necessity.
§10.3.10.2In communi diuidundo iudicio iusto pretio rem aestimare debebit iudex et de euictione quoque cauendum erit.
In an action for partition of common property, the judge must value the thing at a fair price, and security must also be provided against eviction.

Notes

  1. §10.3.10.prheres socii praestet — Present subjunctive. Although the Aquilian action (an action in tort) does not normally lie against an heir, in a contract-like action based on joint ownership (the action for partition of common property), the heir must nevertheless make amends (praestare) for the deceased's acts.
  2. §10.3.10.1non uideatur alter qui mercedem accipit non uti — A double negation: 'non uideatur... non uti'. Since the right of use (usus) is strictly personal and cannot be transferred or leased, awarding the use to one party and compensation (merces) to the other might seem to violate its nature by implying that the latter party is leasing the right (i.e., not using it himself). The praetor intervenes with a legal fiction, deeming that the party receiving compensation is 'not not using' (i.e., legally deemed to be using) the right.
  3. §10.3.10.2de euictione quoque cauendum erit — 'cauendum erit' is an impersonal passive periphrastic construction (gerundive expressing obligation). It indicates the duty to provide security (cautio) in case the property awarded by the judge in the partition of common property is subsequently evicted (evictio) by a third party.

Cite this passage

Justinian I, The Digest of Justinian §10.3.10.pr-10.3.10.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:10.3.10.pr-10.3.10.2

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