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Justinian I · The Digest of Justinian §12.6.40.pr-12.6.40.2

Recovery under Perpetual Exceptions and Fideicommissa

Passage 2016 of 9271 · Latin

Summary

The jurist discusses the recovery of payments made by mistake under a perpetual exception and its exceptions, the deduction of repair expenses for a house left under a fideicommissum, and the recovery of payments made by a freedman after an agreement to waive services.

[IDEM libro tertio regularum. ] §12.6.40.prQui exceptionem perpetuam habet, solutum per errorem repetere potest: sed hoc non est perpetuum.
[IDEM libro tertio regularum.] A person who has a perpetual exception can recover what has been paid by mistake; but this is not universally true.
nam si quidem eius causa exceptio datur cum quo agitur, solutum repetere potest, ut accidit in senatus consulto de intercessionibus: ubi uero in odium eius cui debetur exceptio datur, perperam solutum non repetitur, ueluti si filius familias contra Macedonianum mutuam pecuniam acceperit et pater familias factus soluerit, non repetit.
For if indeed the exception is granted for the sake of the person who is sued, he can recover what was paid, as happens under the senatusconsultum on intercessions; but where the exception is granted out of hatred for the person to whom the debt is owed, what was paid by mistake is not recovered, as for example, if a filius familias has accepted a loan of money contrary to the Senatusconsultum Macedonianum and, having become a pater familias, has paid it, he does not recover it.
§12.6.40.1Si pars domus, quae in diem per fideicommissum relicta est, arserit ante diem fideicommissi cedentem et eam heres sua impensa refecerit, deducendam esse impensam ex fideicommisso constat et, si sine deductione domum tradiderit, posse incerti condici, quasi plus debito dederit.
If a part of a house, which was left by way of fideicommissum subject to a future day, should burn down before the day of the vesting of the fideicommissum, and the heir should rebuild it at his own expense, it is well established that the expense is to be deducted from the fideicommissum; and if he should deliver the house without deduction, a condictio incerti can be brought, as if he had given more than was due.
§12.6.40.2Si pactus fuerit patronus cum liberto, ne operae ab eo petantur, quidquid postea solutum fuerit a liberto, repeti potest.
If a patron has made an agreement with his freedman that services should not be demanded from him, whatever is subsequently paid by the freedman can be recovered.

Notes

  1. 12.6.40.prnon est perpetuum — This is a play on words with the preceding 'exceptio perpetuam' (perpetual exception), meaning here 'not universally true' or 'not without exception' regarding the rule's applicability.
  2. 12.6.40.prcum quo agitur — The preposition cum is postpositioned to quo, the ablative of the relative pronoun qui. The antecedent pronoun (such as the dative ei) is omitted, referring to 'the person with whom it is pleaded', i.e., the defendant.
  3. 12.6.40.prin odium eius cui debetur — The phrase eius cui debetur means 'the person to whom it is owed', i.e., the creditor. The construction in odium followed by the genitive expresses the purpose 'out of hatred for' or 'as a penalty against'.
  4. 12.6.40.1diem fideicommissi cedentem — The dies cedens (the day of vesting) is a legal term of art in legatum and fideicommissum, referring to the moment when the beneficiary acquires a vested right. The day on which the performance can actually be demanded is called dies veniens.
  5. 12.6.40.1posse incerti condici — The word incerti is the genitive of the neuter noun incertum (something uncertain or indefinite), serving as the object of the condictio. The word condici is the present passive infinitive of the transitive verb condicere (to demand return). The phrase means that a condictio incerti can be brought.

Cite this passage

Justinian I, The Digest of Justinian §12.6.40.pr-12.6.40.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.6.40.pr-12.6.40.2

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