Humanitext Reader

Justinian I · The Digest of Justinian §19.1.35.pr

Action on Purchase After Defeat in Interdict on Servitude

Passage 2801 of 9271 · Latin

Summary

It explains that a buyer of land who is defeated in an interdict regarding a right of way can bring an action on purchase, even if the stipulation against eviction is not triggered due to the lack of an action in rem regarding the servitude.

[IDEM libro septuagesimo ad edictum. ] §19.1.35.prSi quis fundum emerit, quasi per eum fundum eundi agendi ius non esset, et interdicto de itinere actuque uictus sit, ex empto habebit actionem: licet enim stipulatio de euictione non committatur, quia non est de iure seruitutis in rem actione pronuntiatum, tamen dicendum est ex empto actionem competere.
[THE SAME, On the Edict, Book LXX.] If anyone should purchase a tract of land, as if there were no right of way or drive through that land, and should be defeated in an interdict concerning a right of way and drive, he will have an action on purchase. For although the stipulation against eviction is not brought into play, because no judgment has been rendered regarding the right of servitude by an action in rem, nevertheless it must be held that an action on purchase is available.

Notes

  1. §19.1.35.prquasi per eum fundum eundi agendi ius non esset — The conjunction quasi introduces a hypothetical assumption ('as if there were not') and takes the subjunctive imperfect esset. eundi agendi are genitives of the gerund modifying ius, referring respectively to the rights of passage (iter) and driving (actus).
  2. §19.1.35.prlicet enim stipulatio de euictione non committatur — The conjunction licet expresses concession ('although') and is followed by the subjunctive present committatur. The verb committere is used here as a legal technical term, meaning that the condition of the stipulation is fulfilled or triggered.
  3. §19.1.35.prnon est de iure seruitutis in rem actione pronuntiatum — pronuntiatum est is an impersonal passive, meaning 'it has not been pronounced/decided.' The ablative phrase in rem actione specifies the particular legal remedy (action in rem) through which the existence of the servitude (de iure seruitutis) should have been determined.

Cite this passage

Justinian I, The Digest of Justinian §19.1.35.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:19.1.35.pr

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