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Justinian I · The Digest of Justinian §19.2.29.pr

Scope of the Lessee's Duty of Vigilance in Forest Preservation

Passage 2850 of 9271 · Latin

Summary

This text discusses the interpretation of the phrase 'not to allow' in a lease contract's forest preservation clause, concluding that the contractor's obligation is not limited to stopping violators when seen by chance, but extends to an active duty of vigilance to prevent any damage.

[ALFENUS libro septimo digestorum. ] §19.2.29.prIn lege locationis scriptum erat: 'redemptor siluam ne caedito neue cingito neue deurito neue quem cingere caedere urere sinito'. quaerebatur, utrum redemptor, si quem quid earum rerum facere uidisset, prohibere deberet an etiam ita siluam custodire, ne quis id facere possit.
[ALFENUS, Digest, book 7] In the terms of the lease, it was written: 'The contractor shall not cut down the forest, nor girdle the trees, nor burn them down, nor allow anyone to girdle, cut down, or burn them.' The question was asked whether the contractor, if he had seen anyone doing any of those things, was only obliged to prevent them, or whether he was also obliged to guard the forest in such a way that no one could do so.
respondi uerbum sinere utramque habere significationem, sed locatorem potius id uideri uoluisse, ut redemptor non solum, si quem casu uidisset siluam caedere, prohiberet, sed uti curaret et daret operam, ne quis caederet.
I replied that the word 'to allow' has both meanings, but it seems that the landlord rather intended that the contractor should not only prevent someone if he had by chance seen him cutting down the forest, but also take care and make every effort that no one should cut it down.

Notes

  1. 19.2.29.prcingito — Although the verb `cingere` literally means 'to surround' or 'to gird,' in the context of forestry and timber management (`siluam`), it refers to 'girdling' or 'ringing'—cutting away a ring of bark from around the trunk of a tree to kill it.
  2. 19.2.29.prneue quem — After the negative particle `neue` (as well as `ne`, etc.), the prefix `ali-` of the indefinite pronoun `aliquis` is regularly dropped, meaning `quem` functions as `aliquem` (anyone) in the accusative masculine singular.
  3. 19.2.29.prsinere — This note addresses the legal ambiguity of the verb `sinere` (to allow/permit). A interpretive dispute arises as to whether it should be taken in a narrow sense, meaning 'not stopping someone when witnessing the act' (omission of action), or in a broader sense, meaning 'negligently failing to prevent the act through lack of surveillance' (breach of objective duty of care). Alfenus adopts the broader interpretation, which affirms the duty of active guarding.
  4. 19.2.29.prlocatorem potius id uideri uoluisse — This is an accusative-with-infinitive (Aci) construction governed by `respondi`. The passive infinitive `uideri` acts as a complement to the perfect infinitive `uoluisse`, forming a double auxiliary-like structure meaning 'seems to have wished'. The preceding demonstrative pronoun `id` functions proleptically to anticipate the content of the following `ut` clause (`ut redemptor...`).

Cite this passage

Justinian I, The Digest of Justinian §19.2.29.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:19.2.29.pr

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