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Justinian I · The Digest of Justinian §17.2.43.pr

Concurrent Actions for Partition and pro socio

Passage 2545 of 9271 · Latin

Summary

The action for division of common property and the action pro socio do not extinguish each other because they involve different remedies, though any recovery in the subsequent action is adjusted to prevent double recovery.

[IDEM libro uicensimo octauo ad edictum. ] §17.2.43.prSi actum sit communi diuidundo, non tollitur pro socio actio, quoniam pro socio et nominum rationem habet et adiudicationem non admittit.
[THE SAME, in his twenty-eighth book on the Edict.] If an action for the division of common property has been brought, the action pro socio is not extinguished, since the action pro socio both takes account of outstanding claims and does not admit of an adjudication.
sed si postea pro socio agatur, hoc minus ex ea actione consequitur, quam ex prima actione consecutus est.
But if the action pro socio is brought subsequently, one obtains so much less from this action as one has obtained from the first action.

Notes

  1. §17.2.43.prcommuni diuidundo — Ablative meaning "by the action for the division of common property". The verb `actum sit` is the passive third person singular of the intransitive use of `agere` (to bring an action), used impersonally to mean "if an action has been brought".
  2. §17.2.43.prpro socio — In the clause following the conjunction `quoniam` (since), the feminine noun `actio` is omitted, leaving `pro socio` (the action pro socio) to function as the subject.
  3. §17.2.43.prhoc minus ... quam — The demonstrative `hoc` is an ablative of degree of difference ("by so much less"). Combined with the correlative conjunction `quam` (than), it indicates that the amount obtained from the subsequent action is reduced by the amount already obtained from the first action (`consecutus est`).

Cite this passage

Justinian I, The Digest of Justinian §17.2.43.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:17.2.43.pr

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