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Justinian I · The Digest of Justinian §2.2.3.pr-2.2.3.7

Scope and Effects of Reciprocal Rules against Unjust Claimants

Passage 262 of 9271 · Latin

Summary

Provisions on the reciprocal penalty for obtaining an unjust ruling, detailing its applicability to agents, sureties, family members, and heirs, as well as the non-recovery of voluntary payments due to the survival of a natural obligation.

[ULPIANUS libro tertio ad edictum. ] §2.2.3.prSi quis iniquum ius aduersus aliquem impetrauit, eo iure utatur ita demum, si per postulationem eius hoc uenerit: ceterum si ipso non postulante, non coercetur.
[ULPIAN, on the Edict, Book III.] If anyone has obtained an unjust law against another, he shall be subject to that same law only if this has come about through his petition; but if he did not petition, he is not penalized.
sed si impetrauit, siue usus est iure aliquo, siue impetrauit ut uteretur licet usus non sit, hoc edicto puniatur.
But if he did obtain it, whether he made use of some law, or obtained it in order to use it though he did not use it, let him be punished under this edict.
§2.2.3.1Si procurator meus postulauit, quaeritur quis eodem iure utatur: et putat Pomponius me solum, utique si hoc ei specialiter mandaui uel ratum habui.
If my agent has petitioned, the question is raised as to who is subject to the same law; and Pomponius thinks that I alone am, provided that I specifically mandated this to him or ratified it.
si tamen tutor uel curator furiosi postulauerit uel adulescentis, ipse hoc edicto coercetur.
If, however, a guardian or a curator of a madman or of a young person has petitioned, he himself is penalized under this edict.
item aduersus procuratorem id obseruandum est, si in rem suam fuerit datus.
The same rule is to be observed against an agent if he was appointed for his own benefit.
§2.2.3.2Haec poena aduersus omnem statuitur, qui in edictum incidit, non solum eo postulante qui ab eo laesus est, sed omni, qui quandoque experitur.
This punishment is established against everyone who falls under the edict, not only upon the petition of the person who was injured by him, but of anyone who at any time brings an action.
§2.2.3.3Si is pro quo spopondisti impetrauerit, ne aliquis debitor ipsius aduersus eum exceptione utatur, deinde tu in negotio, in quo spopondisti, uelis exceptione uti: nec te nec ipsum oportet hoc impetrare, etsi interdum patiaris iniuriam, si soluendo debitor non sit.
If the person for whom you became surety has obtained an order that some debtor of his should not use a plea against him, and then you, in the transaction in which you became surety, wish to use a plea: neither you nor he himself ought to obtain this, even if you sometimes suffer injury if the debtor is insolvent.
sed si tu incidisti in edictum, reus quidem utetur exceptione, tu non utaris: nec poena tua ad reum promittendi pertinebit: et ideo mandati actionem non habebis.
But if you have fallen under the edict, the principal debtor indeed shall use the plea, but you shall not; nor will your punishment affect the principal promisor; and therefore you will not have an action of mandate.
§2.2.3.4Si filius meus in magistrate in hoc edictum incidit, an in his actionibus, quas ex persona eius intendo, hoc edicto locus sit? et non puto, ne mea condicio deterior fiat.
If my son, while in a magistracy, has fallen under this edict, is there room for this edict in those actions which I bring on his account? I do not think so, lest my condition should be made worse.
§2.2.3.5Quod autem ait praetor, ut is eodem iure utatur, an etiam ad heredem haec poena transmittatur? et scribit Iulianus non solum ipsi denegari actionem, sed etiam heredi eius.
As to the praetor's saying that he shall be subject to that same law, is this punishment also transmitted to the heir? Julian writes that the action is denied not only to the person himself, but also to his heir.
§2.2.3.6Illud quoque non sine ratione scribit non solum in his actionibus pati eum poenam edicti, quas tunc habuit cum incideret in edictum, uerum si quae postea ei adquirentur.
He also writes, not without reason, that he suffers the punishment of the edict not only in those actions which he had at the time he fell under the edict, but also in those which may subsequently be acquired by him.
§2.2.3.7Ex hac causa solutum repeti non posse Iulianus putat: superesse enim naturalem causam, quae inhibet repetitionem.
Julian thinks that what has been paid on this account cannot be recovered; for a natural cause survives which prevents recovery.

Notes

  1. §2.2.3.preo iure utatur — Although active in form ("let him use that law"), here it denotes the reciprocal effect of the penalty, meaning that he must have the same rule applied to himself which he unjustly obtained against another.
  2. §2.2.3.1si in rem suam fuerit datus — Meaning "if he was appointed (as an agent) for his own benefit." This refers to an agent appointed for his own interest (procurator in rem suam, equivalent to an assignee of a claim), who, having a direct interest in the outcome, is personally subject to the penalty.
  3. §2.2.3.3reus promittendi — Refers to the "principal promisor," i.e., the principal debtor in the context of suretyship (sponsio). Even if the surety suffers the penalty of losing the plea due to his own violation, this penalty does not affect the principal debtor.
  4. §2.2.3.7naturalem causam — Refers to a natural obligation (obligatio naturalis). Even if the civil law action is denied under the edict, the natural validity (causa) of the debt remains, and therefore voluntary payments cannot be recovered as undue enrichment.

Cite this passage

Justinian I, The Digest of Justinian §2.2.3.pr-2.2.3.7. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:2.2.3.pr-2.2.3.7

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