Humanitext Reader

Justinian I · The Digest of Justinian §13.6.21.pr-13.6.21.1

Counter-Action for Theft by Lender and Slave Noxal Liability

Passage 2136 of 9271 · Latin

Summary

Discusses the availability of a beneficial counter-action on loan when a lender steals the borrowed item, and analyzes the liability of a slave owner under a noxal action for theft committed by a slave who fled to the enemy.

[AFRICANUS libro octauo quaestionum. ] §13.6.21.prRem mihi commodasti: eandem subripuisti: deinde cum commodati ageres nec a te scirem esse subreptam, iudex me condemnauit et solui: postea comperi a te esse subreptam: quaesitum est, quae mihi tecum actio sit.
[AFRICANUS, in the eighth book of Questions.] You loaned a thing to me; you yourself stole the same thing; then, when you brought the action on loan and I did not know that it had been stolen by you, the judge condemned me and I paid. Afterwards, I discovered that it had been stolen by you. The question was asked, what action I have against you.
respondit furti quidem non esse, sed commodati contrarium iudicium utile mihi fore.
He replied that there is indeed no action for theft, but that the beneficial counter-action on loan would be available to me.
§13.6.21.1In exercitu contubernalibus uasa utenda communi periculo dedi ac deinde meus seruus subreptis his ad hostes profugit et postea sine uasis receptus est.
In the army, I gave vessels to my tent-companions to be used at their common risk, and then my slave, having stolen them, fled to the enemy and was afterwards recovered without the vessels.
habiturum me commodati actionem cum contubernalibus constat pro cuiusque parte: sed et illi mecum furti serui nomine agere possunt, quando et noxa caput sequitur.
It is established that I will have the action on loan against my tent-companions in proportion to each one's share; but they also can bring an action for theft against me on account of the slave, since the liability for damage follows the person.
et si tibi rem periculo tuo utendam commodauero eaque a seruo meo subripiatur, agere mecum furti possis serui nomine.
And if I loan a thing to you to be used at your risk, and it is stolen by my slave, you can bring an action for theft against me on account of the slave.

Notes

  1. §13.6.21.prcommodati contrarium iudicium utile — The adjective `utile` (beneficial/analogous) modifies `iudicium` (action). It refers to a 'beneficial action' (actio utilis), which is a cause of action extended by the praetor to grant a remedy based on equity in a situation where the civil law action (here, the actio commodati contraria) does not strictly apply.
  2. §13.6.21.1subreptis his — An ablative absolute construction. The pronoun `his` refers to the preceding neuter plural noun `uasa` (vessels), meaning 'these having been stolen (by the slave)'.
  3. §13.6.21.1serui nomine — 'In the name of the slave' or 'on account of the slave.' This is a technical legal term in the context of a noxal action (actio noxalis), indicating that the owner of a slave is sued on the basis of a delict (theft) committed by that slave.
  4. §13.6.21.1noxa caput sequitur — A famous Roman legal maxim meaning 'the liability for damage follows the person' (literally, 'the harm follows the head'). It states that the obligation to pay damages or surrender the offending slave/animal under a noxal action attaches to whoever is the current owner of the slave/animal at the time of joinder of issue (litis contestatio), rather than at the time the delict was committed.

Cite this passage

Justinian I, The Digest of Justinian §13.6.21.pr-13.6.21.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.6.21.pr-13.6.21.1

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