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Justinian I · The Digest of Justinian §12.2.29.pr

Defense of Oath When Swearing to Adverse Non-Swearing

Passage 1926 of 9271 · Latin

Summary

The author argues that if a defendant, upon the plaintiff offering the oath, swears that the plaintiff did not take the oath, the defendant can plead the defense of the oath to extinguish the issue even against a subsequent beneficial action brought by the plaintiff based on his own oath.

[TRYPHONINUS libro sexto disputationum. ] §12.2.29.prQuod si iuraui te deferente non iurasse te dare tibi oportere, et aduersus utilem actionem, qua hoc quaeritur, an iuraueris tibi dari oportere, opponenda est exceptio iurisiurandi perementis quaestionem actione comprehensam.
[TRYPHONINUS, Book VI of Dissertations.] But if I have sworn, upon your offering the oath, that you did not swear that I was bound to give to you, then even against the beneficial action, in which it is asked whether you swore that payment ought to be made to you, the defense of the oath must be pleaded, which extinguishes the question encompassed by the action.

Notes

  1. §12.2.29.prte deferente — An ablative absolute with the present participle `deferente`. The pronoun `te` acts as its subject. Here, `deferre` (to offer or tender) refers to the act of one party calling upon the other to take an oath.
  2. §12.2.29.prnon iurasse te dare tibi oportere — An accusative with infinitive construction acting as the object of `iuraui`. `te` is the subject of the perfect infinitive `non iurasse`, which in turn governs `dare tibi oportere`. The impersonal verb `oportere` takes the active infinitive `dare` as its subject. Compared with the subsequent passive `dari`, this active form implies "that [I] was bound to give to you."
  3. §12.2.29.prperementis — The genitive singular of the present participle `perimens` (destroying, extinguishing). Grammatically, it modifies the genitive singular `iurisiurandi` rather than the nominative singular `exceptio`. Thus, it means "the exception of an oath which extinguishes (the question)."

Cite this passage

Justinian I, The Digest of Justinian §12.2.29.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.2.29.pr

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