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Justinian I · The Digest of Justinian §17.1.57.pr

Sale by Mandatary's Heirs and Usucapion

Passage 2497 of 9271 · Latin

Summary

The jurist determines that while a mandate to sell slaves terminates upon the proxy's death, if his heirs sell them in good faith, the buyers can acquire them by usucapion, but the original owner (the slave-dealer) is granted recourse via the Publician action.

[IDEM libro decimo responsorum. ] §17.1.57.prMandatum distrahendorum seruorum defuncto qui mandatum suscepit intercidisse constitit.
[THE SAME, from the tenth book of Responses.] It is established that the mandate to sell the slaves terminated upon the death of the person who undertook the mandate.
quoniam tamen heredes eius errore lapsi non animo furandi, sed exsequendi, quod defunctus suae curae fecerat, seruos uendiderant, eos ab emptoribus usucaptos uideri placuit.
Since, however, his heirs, falling into error, sold the slaves not with the intention of stealing but of executing what the deceased had made his own care, it was held that they should be seen as acquired by usucapion by the buyers.
sed uenaliciarium ex prouincia reuersum Publiciana actione non inutiliter acturum, cum exceptio iusti dominii causa cognita detur neque oporteat eum, qui certi hominis fidem elegit, ob errorem aut imperitiam heredum adfici damno.
But it was held that the slave-dealer, having returned from the province, would sue not without effect by the Publician action, since the exception of lawful ownership is granted only after an investigation of the case, and it is not proper that he who chose the trustworthiness of a specific person should suffer loss because of the error or lack of skill of the heirs.

Notes

  1. 17.1.57.prdefuncto — defuncto is most naturally interpreted as an ablative absolute with the omission of the antecedent eo of the relative clause qui mandatum suscepit ("upon his death"), but it could also be construed as a dative with the verb intercidisse ("terminated for [the deceased] who undertook the mandate"). The translations adopt the ablative interpretation indicating the cause of termination.
  2. 17.1.57.prsuae curae fecerat — suae curae is a dative of purpose/service (part of a double dative construction), where facere aliquid alicui curae means "to make something a matter of care/duty for someone." Here it means that the deceased, while alive, had made the mandated task his own responsibility.
  3. 17.1.57.pruenaliciarium ... acturum — This is an accusative with infinitive construction (with esse omitted) dependent on the governing verb of decision placuit (or constitit). Although the buyers acquire by usucapion, it is held that the slave-dealer (the mandator), to avoid unfair loss, "will not unsuccessfully sue" using the Publician action.

Cite this passage

Justinian I, The Digest of Justinian §17.1.57.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:17.1.57.pr

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