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Justinian I · The Digest of Justinian §10.3.29.pr-10.3.29.1

Expenses Paid Under Mistaken Ownership and Partition

Passage 1724 of 9271 · Latin

Summary

This section explains the difference in available actions between one who misidentifies the co-owner of a common property and one who misidentifies the property as private, and notes that the action for division of common property can be brought even against a mute partner.

[PAULUS libro secundo quaestionum. ] §10.3.29.prSi quis, cum existimauerit fundum communem sibi cum Maeuio esse, quem cum Titio communem habebat, impendisset, recte dicitur etiam communi diuidundo iudicium ei sufficere: hoc enim est, si sciam rem communem esse, ignorem autem cuius socii: neque enim negotia socii gero, sed propriam rem tueor et magis ex re, in quam impenditur, quam ex persona socii actio nascitur.
[PAULUS, Questions, book II.] If anyone, when he believed that a tract of land was common to himself and Maevius, which in fact he held in common with Titius, should have made expenditures on it, it is rightly said that even the action for division of common property is sufficient for him. For this is the case if I know that the property is common, but do not know who the partner is. For I am not managing the affairs of a partner, but protecting my own property, and the action arises more from the property upon which the expenditure is made than from the person of the partner.
denique ea actione pupillum teneri dicimus, ut impendia restituat officio iudicis.
Therefore, we say that a ward is bound by that action to restore the expenditures by the office of the judge.
diuersa causa est eius qui putat se in rem propriam impendere, cum sit communis: huic enim nec communi diuidundo iudicium competit nec utile dandum est.
The case is different for one who thinks he is making expenditures on his own private property, when it is actually common. For to him, neither the action for division of common property is available, nor should an analogical action be granted.
ille enim qui scit rem esse communem uel aliena negotia eo animo gerit, ut aliquem sibi obliget, et in persona labitur.
For he who knows that the property is common either manages another's affairs with the intention of binding someone to himself, or at least makes a mistake as to the person.
§10.3.29.1Pomponius scripsit posci iudicem posse a quolibet sociorum: sed etiamsi unus ex sociis mutus erit, recte cum eo communi diuidundo agi.
Pomponius wrote that a judge can be requested by any of the partners; but even if one of the partners is mute, the action for division of common property is rightly brought against him.

Notes

  1. §10.3.29.prcommuni diuidundo — A dative of purpose or adjectival dative meaning "for dividing common property," which qualifies the subsequent nouns "iudicium" (action/judgment) or "actio".
  2. §10.3.29.prin persona labitur — Meaning "errs with respect to the person." It describes a situation where there is a subjective awareness of the common property or of managing another's affair, but a mistake is made regarding the identity of the specific partner.
  3. §10.3.29.1recte cum eo communi diuidundo agi — The passive infinitive "agi" is governed by the indirect speech construction continuing from "scripsit" (Pomponius wrote) in the preceding clause, with an implied "posse" (can be), or functions on its own to express that the action "is rightly brought."

Cite this passage

Justinian I, The Digest of Justinian §10.3.29.pr-10.3.29.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:10.3.29.pr-10.3.29.1

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