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Justinian I · The Digest of Justinian §2.9.2.pr-2.9.2.1

Liability after Noxal Surrender and Procedure in Absence

Passage 320 of 9271 · Latin

Summary

Paulus states that a slave surrendered for damage is not released from prior liability, and explains the procedural steps to be taken when the slave is absent or when the slave is present but the master is absent.

[PAULUS libro sexto ad edictum. ] §2.9.2.prSed alio iure utimur.
[PAULUS, in the sixth book on the Edict.] But we apply a different rule of law.
nam ex praecedentibus causis non liberatur noxae deditus: perinde enim noxa caput sequitur, ac si uenisset.
For a person surrendered for damage is not released from prior causes; for damage follows the person, just as if he had been sold.
§2.9.2.1Si absens sit seruus, pro quo noxalis actio alicui competit: si quidem dominus non negat in sua potestate esse, compellendum putat Uindius uel iudicio eum sisti promittere uel iudicium accipere, aut, si nolit defendere, cauturum, cum primum potuerit, se exhibiturum: sin uero falso neget in sua potestate esse, suscepturum iudicium sine noxae deditione.
If a slave, concerning whom someone has a noxal action, is absent: if indeed the master does not deny that the slave is in his power, Vindius thinks he must be compelled either to promise that the slave will be produced in court, or to accept the trial, or, if he does not wish to defend, to guarantee that he will produce him as soon as he can. But if he falsely denies that the slave is in his power, he must accept the trial without the option of surrendering him for damage.
idque Iulianus scribit et si dolo fecerit, quominus in eius esset potestate.
And Julian writes that this also applies if he has maliciously acted so that the slave should cease to be in his power.
Sed si seruus praesens est, dominus abest nec quisquam seruum defendit, ducendus erit iussu praetoris: sed causa cognita domino postea dabitur defensio, ut Pomponius et Uindius scribunt, ne ei absentia sua noceat: ergo et actori actio restituenda est, perempta eo quod ductus seruus in bonis eius esse coepit.
But if the slave is present, the master is absent, and no one defends the slave, he must be taken away by order of the praetor; but after an inquiry into the case, the defense will afterwards be given to the master, as Pomponius and Vindius write, so that his absence may not prejudice him. Therefore, the action must also be restored to the plaintiff, which was extinguished by the fact that the slave who was taken away began to belong to his property.

Notes

  1. §2.9.2.pruenisset — The third-person singular pluperfect subjunctive of the verb *uēneo* (to be sold). It is not from *uenio* (to come), but represents a hypothetical condition ('just as if he had been sold').
  2. §2.9.2.1compellendum — Ellipsis of *compellendum esse*, functioning as the predicate of the accusative-and-infinitive clause governed by *putat*, with its subject (*dominum*) understood. Similarly, the subsequent future infinitives *cauturum [esse]* and *suscepturum [esse]* depend on *putat* with the master as the subject.
  3. §2.9.2.1perempta eo quod — *perempta* is a perfect participle (nominative feminine singular) agreeing with the subject *actio*. The phrase *eo quod* functions adverbially to indicate the cause ('by the fact that'), with the *quod* clause providing the specific reason.

Cite this passage

Justinian I, The Digest of Justinian §2.9.2.pr-2.9.2.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:2.9.2.pr-2.9.2.1

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