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Justinian I · The Digest of Justinian §19.1.5.pr-19.1.5.1

Remedies on Testamentary Sales and Mistaken Obligations

Passage 2768 of 9271 · Latin

Summary

This section discusses the concurrent remedies of the action on purchase and the action on the testament for an heir condemned to sell, and the availability of the defense of fraud and the recovery of an uncertain thing if the heir mistakenly believed he was bound to sell or give.

[IDEM libro tertio ad Sabinum. ] §19.1.5.prSi heres testamento quid uendere damnatus sit et uendiderit, de reliquis, quae per consequentias emptionis propria sunt, uel ex empto uel ex testamento agi cum eo poterit.
[THE SAME, on Sabinus, Book 3] If an heir has been condemned by a testament to sell something and has sold it, an action can be brought against him, either on purchase or on the testament, concerning the remaining matters which are proper as consequences of the sale.
§19.1.5.1Sed si falso existimans se damnatum uendere uendiderit, dicendum est agi cum eo ex empto non posse, quoniam doli mali exceptione actor summoueri potest, quemadmodum, si falso existimans se damnatum dare promisisset, agentem doli mali exceptione summoueret.
But if, falsely believing that he was condemned to sell, he has sold it, it must be said that an action on purchase cannot be brought against him, since the plaintiff can be barred by the defense of fraud; just as, if, falsely believing that he was condemned to give, he had promised, he would bar the plaintiff by the defense of fraud.
Pomponius etiam incerti condicere eum posse ait, ut liberetur.
Pomponius also says that he can bring an action for recovery of an uncertain thing in order to be released.

Notes

  1. §19.1.5.prdamnatus sit — A passive form of the testamentary formula "testamento damnatus esse" (to be bound by a testament). It takes "heres" (heir) as its subject and governs the infinitive "uendere".
  2. §19.1.5.1se damnatum uendere — An accusative-with-infinitive (ACI) construction acting as the object of the participle "existimans" (believing falsely). "se" (the heir himself) is the subject accusative, while "damnatum" agrees with "se" and governs the infinitive "uendere" with "esse" being understood (se damnatum esse uendere).
  3. §19.1.5.1incerti condicere — The verb "condicere" (to claim recovery of unjust enrichment) governing the genitive "incerti" (an uncertain thing). In contrast to the standard claim for a specific object or sum (condictio certi), "incerti" is used here because the object of recovery is the release from an obligation arising from the mistaken contract, which is an unspecified benefit.

Cite this passage

Justinian I, The Digest of Justinian §19.1.5.pr-19.1.5.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:19.1.5.pr-19.1.5.1

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