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Justinian I · The Digest of Justinian §11.5.4.pr-11.5.4.2

Permissible Food Wagers and Recovery of Losses by Slaves

Passage 1796 of 9271 · Latin

Summary

Paulus states that wagers on food served at banquets are permitted, outlines the right of recovery if a slave or son in power loses, defines the master's limited liability regarding the peculium, and addresses recovery actions against parents and patrons.

[PAULUS libro nono decimo ad edictum. ] §11.5.4.prQuod in conuiuio uescendi causa ponitur, in eam rem familia ludere permittitur.
[PAULUS, from the nineteenth book on the Edict.] As for what is served at a banquet for the purpose of eating, the household is permitted to play for that stake.
§11.5.4.1Si seruus uel filius familias uictus fuerit, patri uel domino competit repetitio.
If a slave or a son in power has been defeated, the father or the owner has the right of recovery.
item si seruus acceperit pecuniam, dabitur in dominum de peculio actio, non noxalis, quia ex negotio gesto agitur: sed non amplius cogendus est praestare, quam id quod ex ea re in peculio sit.
Likewise, if a slave has received money, an action concerning the peculium shall be granted against the master, not a noxal action, because the action is brought as if on a transaction; but he is not to be compelled to pay more than what, from that matter, is in the peculium.
§11.5.4.2Aduersus parentes et patronos repetitio eius quod in alea lusum est utilis ex hoc edicto danda est.
Against parents and patrons, an equitable action for the recovery of what was lost in gambling must be granted under this edict.

Notes

  1. §11.5.4.prQuod in conuiuio uescendi causa ponitur, in eam rem — The relative clause Quod... refers to 'what is served' without an explicit antecedent, which is then picked up by the demonstrative eam rem in the main clause. In eam rem means 'for that stake' or 'with that served item as the wager'.
  2. §11.5.4.1non noxalis, quia ex negotio gesto agitur — Since the liability is framed as arising from a business-like transaction (ex negotio gesto) rather than a delict (which would trigger a noxal action), the master cannot escape liability by surrendering the slave (noxae deditio) and is instead sued under the action on the peculium (de peculio actio).
  3. §11.5.4.1sed non amplius cogendus est praestare, quam id quod ex ea re in peculio sit — This limits the master's liability under the action on the peculium not to the entire peculium, but specifically to the amount that entered the peculium from that specific transaction (ex ea re). The phrase quam id quod functions as the comparison to non amplius.
  4. §11.5.4.2utilis — An equitable or analogous action (actio utilis) granted by the praetor to extend the scope of the edict. Since children or freedmen are generally restricted from bringing ordinary actions against their parents or patrons, this modified action is granted for recovery.

Cite this passage

Justinian I, The Digest of Justinian §11.5.4.pr-11.5.4.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:11.5.4.pr-11.5.4.2

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