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Justinian I · The Digest of Justinian §12.3.5.pr-12.3.5.4

Scope of the Oath in Court and Judicial Limitation

Passage 1944 of 9271 · Latin

Summary

Marcianus explains the scope of actions where the oath in court applies, the judge's power to limit the amount and exercise discretion afterwards, noting that it applies only to fraud and not to negligence, while showing that even in strict law actions, the oath is exceptionally required when the promised object perishes during default.

[MARCIANUS libro quarto regularum. ] §12.3.5.prIn actionibus in rem et in ad exhibendum et in bonae fidei iudiciis in litem iuratur.
[MARCIANUS, Fourth Book of Rules.] In actions in rem, in actions for production, and in good faith trials, the oath in court is taken.
§12.3.5.1Sed iudex potest praefinire certam summam, usque ad quam iuretur: licuit enim ei a primo nec deferre.
But the judge can predetermine a certain sum up to which the oath may be taken; for it was permitted to him from the beginning not even to tender it.
§12.3.5.2Item et si iuratum fuerit, licet iudici uel absoluere uel minoris condemnare.
Likewise, even if the oath has been taken, it is permitted to the judge either to acquit or to condemn for a lesser amount.
§12.3.5.3Sed in his omnibus ob dolum solum in litem iuratur, non etiam ob culpam: haec enim iudex aestimat.
But in all these cases, the oath in court is taken only on account of fraud, not also on account of negligence; for the latter the judge estimates.
§12.3.5.4Plane interdum et in actione stricti iudicii in litem iurandum est, ueluti si promissor Stichi moram fecerit et Stichus decesserit, quia iudex aestimare sine relatione iurisiurandi non potest rem quae non extat:
Clearly, sometimes the oath in court must be taken even in an action of strict law, as, for instance, if the promisor of Stichus has committed default and Stichus has died, because the judge cannot estimate a thing which no longer exists without referring to the oath.

Notes

  1. 12.3.5.1usque ad quam iuretur — The relative pronoun `quam` refers back to `certam summam` and introduces a relative clause with the subjunctive `iuretur` (third-person singular present passive, used impersonally) to express restriction or purpose ('up to which the oath may be taken').
  2. 12.3.5.3haec — The neuter plural demonstrative pronoun `haec` refers contextually to matters arising from negligence (`ob culpam`). It indicates that in cases of negligence, the judge must objectively estimate the value (`aestimat`) themselves, rather than leaving it to the plaintiff's subjective oath.
  3. 12.3.5.4relatione iurisiurandi — The noun `relatio` (here in the ablative case) means the 'referring to' or 'reliance upon' the oath. It explains a situation in an action of strict law where, because the object of the dispute has perished and no longer exists, the judge cannot make an objective valuation and must exceptionally rely on the oath of the party.

Cite this passage

Justinian I, The Digest of Justinian §12.3.5.pr-12.3.5.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.3.5.pr-12.3.5.4

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