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Justinian I · The Digest of Justinian §12.2.6.pr

Legal Requirements for the Remission of an Oath

Passage 1903 of 9271 · Latin

Summary

Paulus explains the requirements for a waiver of an oath, stating that a waiver only occurs when the plaintiff excuses the adversary after the latter has shown a willingness to undertake the oath, and that no waiver can exist if the oath was never undertaken in the first place.

[PAULUS libro nono decimo ad edictum. ] §12.2.6.prRemittit iusiurandum, qui deferente se cum paratus esset aduersarius iurare gratiam ei facit contentus uoluntate suscepti iurisiurandi.
[PAULUS, on the Edict, book nineteen.] He waives the oath, who, when he himself proffered it and his adversary was ready to swear, excuses him, being satisfied with the willingness to undertake the oath.
quod si non suscepit iusiurandum, licet postea parato iurare actor nolit deferre, non uidebitur remissum: nam quod susceptum est remitti debet.
But if the adversary did not undertake the oath, although the plaintiff is unwilling to proffer it to him who is afterwards prepared to swear, it will not be deemed waived: for that which has been undertaken ought to be waived.

Notes

  1. §12.2.6.prdeferente se — This is an ablative absolute construction with the reflexive pronoun `se`, which refers back to the subject of the main clause `qui` (the plaintiff).
  2. §12.2.6.prcontentus uoluntate suscepti iurisiurandi — The adjective `contentus` (satisfied) governs the ablative `uoluntate`, which is modified by the genitive phrase containing a gerundive `suscepti iurisiurandi` (of the undertaken oath), meaning "satisfied with the adversary's willingness to undertake the oath."
  3. §12.2.6.prparato iurare — This is a dative singular (agreeing with the implied adversary) acting as the indirect object of the infinitive `deferre` (or dependent on `nolit`), meaning "although the plaintiff is unwilling to proffer [it] to the adversary who is afterwards prepared to swear," rather than an ablative absolute.

Cite this passage

Justinian I, The Digest of Justinian §12.2.6.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.2.6.pr

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