Humanitext Reader

Justinian I · The Digest of Justinian §16.3.5.pr-16.3.5.2

Contrary Action and the Stakeholder's Duties

Passage 2410 of 9271 · Latin

Summary

Ulpian discusses the nature of the contrary action of deposit granted to the depositary, the application of the action of deposit against a stakeholder (sequester) with rules on the place of production, and the legal procedures and restrictions if a stakeholder wishes to resign from his office.

[ULPIANUS libro trigensimo ad edictum. ] §16.3.5.prEi, apud quem depositum esse dicetur, contrarium iudicium depositi datur, in quo iudicio merito in litem non iuratur: non enim de fide rupta agitur, sed de indemnitate eius qui depositum suscepit.
[ULPIANUS libro trigensimo ad edictum.] To him, with whom a deposit is said to have been made, a contrary action of deposit is granted, in which action, with good reason, no oath in litem is taken; for the issue is not concerning breached faith, but concerning the indemnification of him who undertook the deposit.
§16.3.5.1In sequestrem depositi actio competit.
An action of deposit lies against a stakeholder.
si tamen cum sequestre conuenit, ut certo loco rem depositam exhiberet, nec ibi exhibeat, teneri eum palam est: quod si de pluribus locis conuenit, in arbitrio eius est, quo loci exhibeat: sed si nihil conuenit, denuntiandum est ei, ut apud praetorem exhibeat.
If, however, it was agreed with the stakeholder that he should produce the deposited thing in a certain place, and he does not produce it there, it is clear that he is liable; but if it was agreed concerning several places, it is in his discretion in which of the places he should produce it; on the other hand, if nothing was agreed, notice must be given to him to produce it before the praetor.
§16.3.5.2Si uelit sequester officium deponere, quid ei faciendum sit? et ait Pomponius adire eum praetorem oportere et ex eius auctoritate denuntiatione facta his qui eum elegerant, ei rem restituendam qui praesens fuerit.
If the stakeholder should wish to lay down his office, what must he do? And Pomponius says that he ought to approach the praetor and, by his authority, after notice has been given to those who had chosen him, the thing must be restored to him who is present.
sed hoc non semper uerum puto: nam plerumque non est permittendum officium, quod semel suscepit, contra legem depositionis deponere, nisi iustissima causa interueniente: et cum permittitur, raro ei res restituenda est qui uenit, sed oportet eam arbitratu iudicis apud aedem aliquam deponi.
But I do not think this is always true; for generally he must not be permitted to lay down the office, which he once undertook, contrary to the terms of the deposit, unless a most just cause intervenes; and when it is permitted, rarely must the thing be restored to him who comes, but it ought to be deposited in some temple by the decision of the judge.

Notes

  1. 16.3.5.prin litem non iuratur — The verb `iuratur` is an impersonal passive. The phrase `in litem iurare` is a legal idiom meaning "to take an oath as to the value of the suit." This indicates that in a contrary action, which is for indemnity and not based on a breach of trust, the subjective oath in litem is not allowed.
  2. 16.3.5.1quo loci — The expression combines the interrogative adverb (or neuter singular pronoun) `quo` with `loci`, a partitive genitive of place, meaning "at/to which place."
  3. 16.3.5.2adire eum praetorem oportere — An accusative and infinitive construction under indirect speech introduced by `ait`. The accusative `eum` (he, referring to the stakeholder) is the subject of the infinitive `adire` (to approach), while `praetorem` (the praetor) is its direct object. Although two accusatives appear in succession, the context clearly determines which is the subject and which is the object.
  4. 16.3.5.2non est permittendum officium... deponere — `non est permittendum` is an impersonal gerundive construction expressing prohibition. The infinitive phrase `officium... deponere` (to lay down the office) functions as the logical subject, while the agent who is not permitted to do so (the stakeholder) is implied in the dative.

Cite this passage

Justinian I, The Digest of Justinian §16.3.5.pr-16.3.5.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:16.3.5.pr-16.3.5.2

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.