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Justinian I · The Digest of Justinian §10.3.11.pr

Action for Partition after Destruction of Property

Passage 1706 of 9271 · Latin

Summary

Explains that even after the destruction of the common property, an analogous action for partition of common property is granted to settle expenses and profits arising from the co-ownership.

[GAIUS libro septimo ad edictum prouinciale. ] §10.3.11.prIn summa admonendi sumus, quod, si post interitum rei communis is, cui aliquid ex communione praestari oportet, eo nomine agere uelit, communi diuidundo iudicium utile datur: ueluti si actor impensas aliquas in rem communem fecit, siue socius eius solus aliquid ex ea re lucratus est, uelut operas serui mercedesue, hoc iudicio eorum omnium ratio habetur.
[GAIUS, from the seventh book on the Provincial Edict.] In short, we must be advised of the fact that, if after the destruction of the common property a person to whom something ought to be performed out of the co-ownership wishes to bring an action on that account, an analogous action for partition of common property is granted: for example, if the plaintiff has made some expenditures on the common property, or if his partner alone has gained something from that property, such as the services of a slave or wages, an account is taken of all these things in this action.

Notes

  1. §10.3.11.pradmonendi sumus, quod... datur — The phrase 'admonendi sumus' is a passive periphrastic conjugation consisting of the gerundive and 'sumus', expressing obligation or necessity ('we must be advised'). The conjunction 'quod' here introduces a noun clause (fact-quod clause) representing the content of the warning, governing the indicative verb 'datur'.
  2. §10.3.11.prcommuni diuidundo iudicium utile — Since the common property has already been destroyed, a direct action (iudicium/actio directa) aiming at the physical division (divisio) of the thing itself cannot be brought. However, because the financial obligations arising from the co-ownership (reimbursement of expenses and distribution of profits) still remain, the praetor grants an 'analogous action (iudicium utile)' as an equitable remedy.
  3. §10.3.11.prratio habetur — The idiom 'ratio haberi' means 'to be taken into account' or 'to be calculated'. In this legal context, it refers to the judge's discretion in the partition action to make a financial settlement or accounting of the expenses incurred and profits gained by each co-owner.

Cite this passage

Justinian I, The Digest of Justinian §10.3.11.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:10.3.11.pr

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