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Justinian I · The Digest of Justinian §2.1.15.pr

Mistake in Choosing a Praetor and Lack of Consent

Passage 254 of 9271 · Latin

Summary

Explains that if application is made to the wrong praetor by mistake, the proceedings are void, citing Julian's opinion that those who act in error cannot be said to consent.

[IDEM libro secundo de omnibus tribunalibus. ] §2.1.15.prSi per errorem alius pro alio praetor fuerit aditus, nihil ualebit quod actum est.
[THE SAME, on All Tribunals, Book II.] If, through error, one praetor has been approached instead of another, what has been done will be of no validity.
nec enim ferendus est qui dicat consensisse eos in praesidem, cum, ut Iulianus scribit, non consentiant qui errent: quid enim tam contrarium consensui est quam error, qui imperitiam detegit?
For anyone who says that they agreed to the governor as judge is not to be tolerated, since, as Julian writes, those who err do not consent. For what is so contrary to consent as error, which reveals ignorance?

Notes

  1. §2.1.15.pralius pro alio praetor fuerit aditus — This phrase literally means "if one praetor has been approached instead of another." `aditus fuerit` is the perfect passive subjunctive of `adire` (to approach, apply to a magistrate), here acting in a conditional clause. `alius` modifies `praetor`, and `pro alio` implies `pro alio praetore`.
  2. §2.1.15.prnec enim ferendus est qui dicat — `ferendus est` is a gerundive of obligation meaning "is to be tolerated," negated here by `nec`. The verb `dicat` in the relative clause `qui dicat` is in the subjunctive of characteristic, defining the type of person who is not to be tolerated.
  3. §2.1.15.prnon consentiant qui errent — `consentiant` is in the subjunctive because it is introduced by the causal conjunction `cum`. The subjunctive `errent` in the relative clause can be explained either as a subjunctive of characteristic (referring to "those who are in error as a class") or as a result of modal attraction (attractio modi) within the subordinate clause.

Cite this passage

Justinian I, The Digest of Justinian §2.1.15.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:2.1.15.pr

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