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Justinian I · The Digest of Justinian §10.3.2.pr-10.3.2.1

Origins of Co-Ownership and Plaintiffs in Double Actions

Passage 1697 of 9271 · Latin

Summary

Discusses how the action for partition of common property applies regardless of whether the co-ownership involves a partnership, and addresses the question of who is considered the plaintiff in the three double actions.

[GAIUS libro septimo ad edictum prouinciale. ] §10.3.2.prNihil autem interest, cum societate an sine societate res inter aliquos communis sit: nam utroque casu locus est communi diuidundo iudicio.
[GAIUS, from the seventh book on the Provincial Edict.] However, it makes no difference whether property is held in common among some persons with a partnership or without a partnership; for in either case, there is room for the action for partition of common property.
cum societate res communis est ueluti inter eos, qui pariter eandem rem emerunt: sine societate communis est ueluti inter eos, quibus eadem res testament legata est.
Property is held in common with a partnership, for example, among those who have purchased the same property together; it is held in common without a partnership, for example, among those to whom the same property has been bequeathed by a will.
§10.3.2.1In tribus duplicibus iudiciis familiae erciscundae, communi diuidundo, finium regundorum quaeritur, quis actor intellegatur, quia par causa omnium uidetur: sed magis placuit eum uideri actorem, qui ad iudicium prouocasset.
In the three double actions, namely, for division of an inheritance, for partition of common property, and for regulation of boundaries, it is questioned who is to be understood as the plaintiff, because the position of all appears to be equal; but the view has rather prevailed that he is to be regarded as the plaintiff who has initiated the legal proceedings.

Notes

  1. §10.3.2.prtestament — Although some manuscripts read "testament", grammatically and contextually (ablative of means) it must be read as "testamento" ("by a will").
  2. §10.3.2.1duplicibus iudiciis — This refers to "double actions" (iudicia duplicia) where both parties can stand in the position of both plaintiff and defendant. The three actions listed (partition of inheritance, partition of common property, and regulation of boundaries) fall into this category.
  3. §10.3.2.1prouocasset — Subjunctive pluperfect of "prouoco" ("to challenge", "to initiate proceedings"). The subjunctive is used here because it is in a subordinate clause within an indirect statement dependent on "placuit", or as a subjunctive of characteristic limiting the antecedent "eum".

Cite this passage

Justinian I, The Digest of Justinian §10.3.2.pr-10.3.2.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:10.3.2.pr-10.3.2.1

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