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Justinian I · The Digest of Justinian §13.1.20.pr

Thief in Perpetual Default and Loss of Stolen Property

Passage 2068 of 9271 · Latin

Summary

The jurist explains that the condictio survives even if the stolen thing is destroyed after the plaintiff delayed in bringing it, because a thief is considered to be perpetually in default regarding restoration.

[TRYPHONINUS libro quinto decimo disputationum. ] §13.1.20.prLicet fur paratus fuerit excipere condictionem et per me steterit, dum in rebus humanis res fuerat, condicere eam, postea autem perempta est, tamen durare condictionem ueteres uoluerunt, quia uidetur, qui primo inuito domino rem contrectauerit, semper in restituenda ea, quam nec debuit auferre, moram facere.
[TRYPHONINUS, Disputations, Book XV] Although the thief was prepared to accept the condictio, and it was my fault that I did not bring the condictio while the thing was still in existence, and afterwards it was destroyed, nevertheless the ancient jurists held that the condictio survives, because it is deemed that he who originally meddled with the thing against the owner's will is always in default in restoring that which he ought not to have taken away in the first place.

Notes

  1. §13.1.20.prper me steterit — The impersonal construction `per aliquem stat` (it is someone's fault, or depends on someone) is used here with the infinitive `condicere`, meaning 'even if it was my own fault that I did not bring the condictio.'
  2. §13.1.20.prin rebus humanis — Literally 'among human things,' this is an idiomatic expression in legal texts referring to a physical thing being still in existence (not destroyed).
  3. §13.1.20.pruidetur ... moram facere — The verb `uidetur` is used here in a personal construction (nominativus cum infinitivo), where the subject is the implied antecedent (`is`) of the relative clause `qui ... contrectauerit`. Thus, it translates to 'he who ... is deemed to be in default.'

Cite this passage

Justinian I, The Digest of Justinian §13.1.20.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.1.20.pr

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