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Justinian I · The Digest of Justinian §2.15.9.pr-2.15.9.3

Scope of Compromise and Restriction to Agreed Matters

Passage 438 of 9271 · Latin

Summary

This section rules on the scope of compromises, stating that they apply only to matters proven to have been negotiated and agreed upon, and do not extinguish other rights acquired through inheritance or unknown to the parties.

[IDEM libro primo opinionum. ] §2.15.9.prQui cum tutoribus suis de sola portione administratae tutelae suae egerat et transegerat, aduersus eosdem tutores ex persona fratris sui, cui heres extiterat, agens praescriptione factae transactionis non summouetur.
[THE SAME in the first book of Opinions.] He who had sued and compromised with his tutors concerning only his own portion of the administered guardianship, is not barred by the defense of the completed compromise when suing the same tutors in the capacity of his brother, whose heir he had become.
§2.15.9.1Transactio quaecumque fit, de his tantum, de quibus inter conuenientes placuit, interposita creditur.
Whatever compromise is made, it is believed to have been entered into only concerning those matters about which it was agreed between the contracting parties.
§2.15.9.2Qui per fallaciam coheredis ignorans uniuersa, quae in uero erant, instrumentum transactionis sine Aquiliana stipulatione interposuit, non tam paciscitur quam decipitur.
He who, being ignorant of the whole truth through the deceit of his co-heir, executed a deed of compromise without an Aquilian stipulation, does not so much contract as he is deceived.
§2.15.9.3Ei qui, nondum certus ad se querellam contra patris testamentum pertinere, de aliis causis cum aduersariis pacto transegit, tantum in his interpositum pactum nocebit, de quibus inter eos actum esse probatur.
To him who, not yet certain that the complaint against his father's will belonged to him, compromised by agreement with his adversaries on other matters, the agreement entered into will cause harm only in those matters about which it is proved that they negotiated.
his tantum transactio obest, quamuis maior annis uiginti quinque eam interposuit, de quibus actum probatur.
A compromise stands in the way only in those matters about which negotiation is proved, even though a person over twenty-five years of age entered into it.
nam ea, quorum actiones competere ei postea conpertum est, iniquum est peremi pacto. id de quo cogitatum non docetur.
For it is unjust that those things, whose actions it was afterwards discovered belonged to him, should be extinguished by the agreement; that is, those concerning which it is not shown that there was any contemplation.

Notes

  1. §2.15.9.prex persona fratris sui — Meaning 'in the capacity of his brother'. As shown by the following 'cui heres extiterat' (whose heir he had become), this expresses the legal position of suing based on the rights of the brother acquired through inheritance.
  2. §2.15.9.2sine Aquiliana stipulatione — Meaning 'without an Aquilian stipulation'. The Aquilian stipulation (stipulatio Aquiliana) was a powerful legal technique in Roman law used to extinguish all pre-existing claims comprehensively; a compromise without it is restricted in effect only to specific, individually agreed matters.
  3. §2.15.9.3nam ea, quorum actiones competere ei postea conpertum est, iniquum est peremi pacto. — An accusative with infinitive (A.C.I.) construction governed by the impersonal 'iniquum est' (it is unjust). The subject accusative is 'ea' (neuter plural accusative) and the infinitive is 'peremi' (present passive infinitive of perimere, 'to be destroyed/extinguished'). Within the relative clause modifying 'ea', the impersonal passive 'conpertum est' (it was discovered) further governs another A.C.I. 'actiones competere ei' (that the actions belonged to him).
  4. §2.15.9.3id de quo cogitatum non docetur. — An additional explanatory clause placed at the end of the sentence. 'cogitatum' represents either the omission of the impersonal perfect passive infinitive (cogitatum esse) or a substantivized expression meaning 'what was contemplated'. It means 'that concerning which it is not shown that there was any contemplation', restricting and clarifying the scope of what is 'unjust' (iniquum est) to be extinguished.

Cite this passage

Justinian I, The Digest of Justinian §2.15.9.pr-2.15.9.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:2.15.9.pr-2.15.9.3

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