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Justinian I · The Digest of Justinian §2.7.5.pr-2.7.5.4

Action on the Facts for Forcible Rescue and Its Scope

Passage 301 of 9271 · Latin

Summary

Ulpian discusses liability for rescuing someone through a third party and the nature of the "action on the facts" (in factum) granted against those who rescue by force. He also explains the requirement of an actual effect for the penalty to apply, the application of the action to co-delinquents and heirs, and its time limit.

[ULPIANUS libro quinto ad edictum. ] §2.7.5.prSi per alium quis exemerit, hac clausula tenetur, siue praesens fuit siue absens.
[ULPIANUS, in the fifth book on the Edict.] If anyone rescues someone through another person, he is bound by this clause, whether he was present or absent.
§2.7.5.1In eum autem, qui ui exemit, in factum iudicium datur: quo non id continetur quod in ueritate est, sed quanti ea res est ab actore aestimata, de qua controuersia est.
On the other hand, against one who has rescued by force, an action on the facts is granted; in which is contained not the actual value, but the amount at which the matter in dispute was estimated by the plaintiff.
hoc enim additum est, ut appareat etiam si calumniator quis sit, tamen hanc poenam eum persequi.
For this was added so that it might appear that even if the plaintiff is a vexatious litigant, he may nevertheless pursue this penalty.
§2.7.5.2Docere autem debet quis per hanc exemptionem factum quo minus in ius produceretur.
But he must prove that because of this rescue, it was brought about that the person was not produced in court.
ceterum si nihilo minus productus est, cessat poena: quoniam uerba cum effectu sunt accipienda.
However, if he was produced nonetheless, the penalty does not apply; since words are to be understood as carrying an effect.
§2.7.5.3Hoc iudicium in factum est: et si plures deliquerint in singulos dabitur, et nihilo minus manet qui exemptus est obligatus:
This action is on the facts; and if several persons have committed the offense, it will be granted against each individual, and nonetheless the person who was rescued remains bound.
§2.7.5.4Heredibus autem ita dabitur, si eorum intersit: neque autem in heredem neque post annum dabitur.
However, it will be granted to heirs only if they have an interest; but it will not be granted against an heir, nor after a year.

Notes

  1. §2.7.5.1quo — Relative pronoun in the neuter singular ablative, referring back to `iudicium` (action). It introduces a relative clause defining what is contained in the formula of that action.
  2. §2.7.5.1quanti — Genitive of value, correlating with the passive participle `aestimata` to mean 'at what value'. It indicates that the amount is based on the plaintiff's subjective valuation.
  3. §2.7.5.2quo minus — A conjunction expressing hindrance or prevention, taking the imperfect subjunctive `produceretur`. It forms a clause dependent on the implied `factum [esse]` in the main clause, meaning 'it was brought about that [he] should not be produced'.
  4. §2.7.5.4si eorum intersit — A conditional clause containing the present subjunctive of the impersonal verb `interesse`. Since `interesse` takes the genitive of the person concerned (here `eorum`, referring to `heredibus`), it means 'if it is of interest to them', restricting the active transmissibility of the action to cases where the heirs have a financial interest.

Cite this passage

Justinian I, The Digest of Justinian §2.7.5.pr-2.7.5.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:2.7.5.pr-2.7.5.4

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