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Justinian I · The Digest of Justinian §13.1.16.pr

Liability in Condictio for Theft by Borrowers or Depositories

Passage 2064 of 9271 · Latin

Summary

This section explains the difference between the liability under a condictio for theft (arising from the unauthorized use of lent or deposited property) and the liability under ordinary contractual actions (for loan and deposit).

[POMPONIUS libro trigensimo octauo ad Quintum Mucium. ] §13.1.16.prQui furtum admittit uel re commodata uel deposita utendo, condicione quoque ex furtiua causa obstringitur: quae differt ab actione commodati hoc, quod, etiamsi sine dolo malo et culpa eius interierit res, condictione tamen tenetur, cum in commodati actione non facile ultra culpam et in depositi non ultra dolum malum teneatur is, cum quo depositi agetur.
[POMPOMIUS, on Quintus Mucius, Book XXXVIII] He who commits theft by using a thing either lent or deposited is also liable to a condictio based on a theftuous cause; which differs from the action on loan in this respect, that even if the thing has perished without his malice or fault, he is nevertheless liable to the condictio; whereas in the action on loan a person is not easily held liable beyond fault, and in the action on deposit, the person against whom the action on deposit is brought is not held liable beyond malice.

Notes

  1. 13.1.16.prcondicione — This is a manuscript variant or spelling error for condictione (condictio, action for recovery). In this context, it refers to the condictio ex causa furtiva (condictio based on theft) and is governed by obstringitur.
  2. 13.1.16.prnon facile ultra culpam — In a loan for use (commodatum), the borrower is generally liable for fault (culpa) but is 'not easily' (non facile) held liable beyond that (i.e., for fortuitous events). This is contrasted with the thief, who is always liable under the condictio even if the thing perishes without their malice or fault, based on the principle that 'a thief is always in default' (fur semper in mora).

Cite this passage

Justinian I, The Digest of Justinian §13.1.16.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.1.16.pr

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