Humanitext Reader

Justinian I · The Digest of Justinian §11.3.5.pr-11.3.5.4

Malicious Intent and Scope of Liability for Corrupting a Slave

Passage 1775 of 9271 · Latin

Summary

Explains the requirement of malicious intent (dolus) in the action for corrupting a slave, liability when corrupting a slave believed to be free, the difference from the Lex Aquilia regarding double damages, noxal liability when a slave commits the offense, and the effect of the slave's death, transfer, or manumission on the action.

[ULPIANUS libro uicensimo tertio ad edictum. ] §11.3.5.prDoli uerbum etiam ad eum qui recepit referendum est, ut non alius teneatur, nisi qui dolo malo recepit: ceterum si quis, ut domino custodiret, recepit uel humanitate uel misericordia ductus uel alia probata atque iusta ratione, non tenebitur.
[ULPIANUS, from the twenty-third book on the Edict.] The word "fraud" must also be referred to him who harbored the slave, so that no other is held liable except he who harbored him with malicious intent. But if anyone harbored him in order to keep him safe for his master, or led by humanity or pity, or for some other approved and just reason, he will not be held liable.
§11.3.5.1Si quis dolo malo persuaserit quid seruo quem liberum putabat, mihi uidetur teneri eum oportere: maius enim delinquit, qui liberum putans corrumpit: et ideo, si seruus fuerit, tenebitur.
If anyone with malicious intent has persuaded a slave of something, whom he believed to be free, it seems to me that he ought to be held liable; for he commits a greater offense who corrupts him thinking him to be free; and therefore, if the person is a slave, he will be held liable.
§11.3.5.2Haec actio etiam aduersus fatentem in duplum est, quamuis Aquilia infitiantem dumtaxat coerceat.
This action is for double the value even against one who confesses, although the Aquilian action penalizes in double only the one who denies.
§11.3.5.3Si seruus seruaue fecisse dicetur, iudicium cum noxae deditione redditur.
If a male or female slave is said to have committed this, the action is granted with the option of noxal surrender.
§11.3.5.4Haec actio refertur ad tempus serui corrupti uel recepti, non ad praesens, et ideo et si decesserit uel alienatus sit uel manumissus, nihilo minus locum habebit actio, nec extinguitur manumissione semel nata actio:
This action relates to the time when the slave was corrupted or harbored, not to the present, and therefore, even if he has died, or has been alienated, or manumitted, the action will nonetheless lie, nor is an action, once arisen, extinguished by manumission.

Notes

  1. §11.3.5.prDoli — Genitive of definition (or appositional genitive) modifying "uerbum", meaning "the word 'fraud' (dolus)".
  2. §11.3.5.1quid — The indefinite pronoun "aliquid" (something) which has lost its prefix "ali-" because it immediately follows the conditional conjunction "si".
  3. §11.3.5.1quem liberum putabat — The relative pronoun "quem" agrees in gender and number (masculine singular) with its antecedent "seruo", and acts as the direct object of "putabat" in the relative clause. "liberum" is a predicative accusative (object complement), meaning "(a slave) whom he thought to be free".
  4. §11.3.5.2infitiantem — Accusative of the present participle "infitians" (one who denies), used substantively, in contrast with "fatentem" (one who confesses). It refers to the rule under the Lex Aquilia where a defendant who denies liability but is found liable must pay double.
  5. §11.3.5.4semel nata actio — A noun phrase meaning "an action once arisen", where the perfect participle "nata" (from nascor, "to arise") modifies the noun "actio" together with the adverb "semel".

Cite this passage

Justinian I, The Digest of Justinian §11.3.5.pr-11.3.5.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:11.3.5.pr-11.3.5.4

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