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Justinian I · The Digest of Justinian §14.4.8.pr

Remedial Nature and Perpetual Liability of the Heir

Passage 2227 of 9271 · Latin

Summary

Julianus explains that because the tributorian action aims at the recovery of property rather than merely punishing fraud, it remains available in perpetuity against the heir even after the death of the slave or the master.

[IULIANUS libro undecimo digestorum. ] §14.4.8.prquia non de dolo est, sed rei persecutionem continet: quare etiam mortuo seruo dominus, item heres eius perpetuo teneri debebit propter factum defuncti: quamuis non aliter quam dolo interueniente competat.
[JULIANUS, from the eleventh book of the Digests.] because it is not based on fraud, but involves the recovery of property: wherefore, even if the slave is dead, the master, and likewise his heir, must be held liable in perpetuity on account of the act of the deceased; although it is not available otherwise than when fraud has intervened.

Notes

  1. §14.4.8.prrei persecutionem — This expression indicates that the action is not for a penalty (poena) to punish a delict, but for the recovery of property or compensation for loss (rei persecutio). This characterization allows the action to lie against the defendant's heir even after death.
  2. §14.4.8.prdefuncti — Although 'mortuo seruo' (the deceased slave) appears in the same sentence, 'defunctus' here refers to the deceased master (the ancestor) in relation to 'heres eius' (his heir, i.e., the master's heir). It means that the heir is liable for the fraudulent act (factum) committed by the deceased master during his lifetime.
  3. §14.4.8.prcompetat — The subjunctive present is used here as it is introduced by the concessive conjunction 'quamuis'. The implied subject is 'actio' (the tributorian action). 'Competere' means that the action is available or lies.

Cite this passage

Justinian I, The Digest of Justinian §14.4.8.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:14.4.8.pr

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