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Justinian I · The Digest of Justinian §13.1.10.pr-13.1.10.3

Condictio Against Robbers and Extinction by Alienation

Passage 2058 of 9271 · Latin

Summary

Ulpian explains the scope of the condictio on the ground of theft and robbery, noting that this right of action ceases if ownership of the stolen thing is transferred by the owner's own act, such as a legacy.

[IDEM libro trigensimo octauo ad edictum. ] §13.1.10.prSiue manifestus fur siue nec manifestus sit, poterit ei condici.
[THE SAME, in his thirty-eighth book on the Edict.] Whether he be a manifest thief or a non-manifest thief, a condictio can be brought against him.
ita demum autem manifestus fur condicione tenebitur, si depraehensa non fuerit a domino possessio eius: ceterum nemo furum condicione tenetur, posteaquam dominus possessionem adpraehendit.
However, a manifest thief will be liable under a condictio only if possession of the thing has not been recovered by the owner; for otherwise, no thief is liable under a condictio after the owner has recovered possession.
et ideo Iulianus, ut procedat in fure manifesto tractare de condictione, ita proponit furem deprensum aut occidisse aut fregisse aut effudisse id quod interceperat.
And therefore Julian, so that the discussion of condictio in the case of a manifest thief may proceed, sets forth the case that the thief caught in the act has either killed, broken, or poured out that which he had intercepted.
§13.1.10.1Ei quoque, qui ui bonorum raptorum tenetur, condici posse Iulianus libro uicensimo secundo digestorum significat.
Julian, in the twenty-second book of his Digests, indicates that a condictio can also be brought against one who is liable for robbery.
§13.1.10.2Tamdiu autem condictioni locus erit, donec domini facto dominium eius rei ab eo recedat: et ideo si eam rem alienauerit, condicere non poterit.
However, there will be room for a condictio only so long as the ownership of that thing does not depart from the owner by his own act; and therefore, if he has alienated that thing, he will not be able to bring a condictio.
§13.1.10.3Unde Celsus libro duodecimo digestorum scribit, si rem furtiuam dominus pure legauerit furi, heredem ei condicere non posse: sed et si non ipsi furi, sed alii, idem dicendum est cessare condictionem, quia dominium facto testatoris, id est domini, discessit.
Whence Celsus writes in the twelfth book of his Digests that, if the owner has unconditionally bequeathed the stolen thing to the thief, the heir cannot bring a condictio against him; but even if he bequeathed it not to the thief himself but to another, the same must be said, namely, that the condictio ceases, because ownership has departed by the act of the testator, that is, the owner.

Notes

  1. §13.1.10.prpoterit ei condici — An impersonal passive construction. Since the verb condicere (to bring a condictio) governs the dative, in the passive voice it is used impersonally, and the party against whom the action is brought is expressed in the dative (ei).
  2. §13.1.10.prut procedat in fure manifesto tractare de condictione — The infinitive phrase tractare de condictione functions as the subject of the subjunctive present verb procedat. Because a stolen object is usually recovered on the spot from a manifest thief, which would leave no room for a condictio, this specific phrasing introduces a scenario constructed to make the discussion of a condictio applicable.
  3. §13.1.10.2domini facto — An ablative phrase of cause or means. The verb recedat in the clause introduced by the conjunction donec (until) is in the present subjunctive.
  4. §13.1.10.3heredem ei condicere non posse — An accusative with infinitive (ACI) construction depending on the main verb scribit. heredem is the subject accusative of the infinitive condicere, and ei (the thief) is the dative object.
  5. §13.1.10.3sed et si — Meaning 'but also if' or 'but even if', extending the logical application from the aforementioned case of a legacy to the thief himself to a similar but legally distinct scenario of a legacy to a third party.

Cite this passage

Justinian I, The Digest of Justinian §13.1.10.pr-13.1.10.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.1.10.pr-13.1.10.3

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