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Justinian I · The Digest of Justinian §10.3.8.pr-10.3.8.4

Partition by Some Co-Owners, Uncertain Shares, and Damages

Passage 1703 of 9271 · Latin

Summary

This chunk discusses the procedure when only certain co-owners wish to partition a common property, the legal remedies for uncertain shares involving the Lex Falcidia or legacies of peculium, and the recovery of expenses or damages among co-owners regarding damaged property, common slaves, or peculium-related liabilities.

[PAULUS libro uicensimo tertio ad edictum. ] §10.3.8.prEt si non omnes, qui rem communem habent, sed certi ex his diuidere desiderant, hoc iudicium inter eos accipi potest.
[PAULUS, from the twenty-third book on the Edict.] And even if not all who have a common property, but only certain of them desire to divide it, this action can be undertaken between them.
§10.3.8.1Si incertum sit, an lex Falcidia locum habeat inter legatarium et heredem, communi diuidundo agi potest aut incertae partis uindicatio datur.
If it is uncertain whether the Falcidian law applies between the legatee and the heir, proceedings can be taken by the action for partition of common property, or an action for recovery of an uncertain share is granted.
similiter fit et si peculium legatum sit, quia in quantum res peculiares deminuit id quod domino debetur, incertum est.
The same is done if a peculium has been bequeathed, because the extent to which that which is owed to the master diminishes the property of the peculium is uncertain.
§10.3.8.2Uenit in communi diuidundo iudicium etiam si quis rem communem deteriorem fecerit, forte seruum uulnerando aut animum eius corrumpendo aut arbores ex fundo excidendo.
Damages are also brought into the action for partition of common property if anyone has deteriorated the common property, for instance, by wounding a slave, or corrupting his mind, or cutting down trees on the estate.
§10.3.8.3Si communis serui gratia noxae nomine plus praestiterit, aestimabitur seruus et eius partem consequetur.
If anyone has paid more than his share on account of a common slave under the head of noxal liability, the slave will be valued, and he will recover the other's share.
§10.3.8.4Item si unus in solidum de peculio conuentus et damnatus sit, est cum socio communi diuidundo actio, ut partem peculii consequatur.
Likewise, if one person has been sued and condemned for the whole amount in respect of the peculium, he has an action for partition of common property against his partner, so that he may recover his share of the peculium.

Notes

  1. §10.3.8.1lex Falcidia — The Lex Falcidia (enacted in 40 BC) provided that legacies could not exceed three-quarters of the estate, thereby securing at least one-quarter (the Falcidian portion) for the heir. This passage discusses the procedural remedies available when it is uncertain whether this law applies to restrict a legacy, thereby creating a common ownership between the legatee and the heir.
  2. §10.3.8.1id quod domino debetur — The subject is the neuter noun phrase with a relative clause id quod domino debetur ("that which is owed to the master"), which functions as the subject of the transitive verb deminuit ("diminishes"), while the accusative plural res peculiares serves as its object. It therefore means the extent to which the debts owed to the master reduce the assets of the peculium.
  3. §10.3.8.2Uenit in communi diuidundo iudicium — Although the subject of the verb Uenit is not formally expressed, it is an impersonal or contextual usage meaning "(something) comes into the judgment/action." The phrase uenit in iudicium is a legal idiom meaning "to be brought within the scope of the trial" or "to be taken into account in the lawsuit."
  4. §10.3.8.3noxae nomine plus praestiterit — noxae nomine means "on account of noxal liability" (noxae). This refers to a situation where, when a commonly owned slave committed a delict against a third party, one of the co-owners paid the full compensation (or surrendered the slave) under a noxal action (actio noxalis), thereby paying more than his own share (plus praestiterit).
  5. §10.3.8.4de peculio conuentus — conuentus (perfect passive participle of conuenio, "to sue") here means "sued" or "summoned as a defendant in court." de peculio refers to "concerning the peculium," pointing to the actio de peculio, by which a creditor sued the master/father to the extent of the peculium for transactions entered into by a slave or a dependent.

Cite this passage

Justinian I, The Digest of Justinian §10.3.8.pr-10.3.8.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:10.3.8.pr-10.3.8.4

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