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Justinian I · The Digest of Justinian §21.2.29.pr-21.2.29.2

Buyback from True Owner and Notice to the Seller

Passage 3110 of 9271 · Latin

Summary

The text discusses that a seller cannot claim the price if the buyer later buys back the property from the true owner, the seller's exemption from liability if the buyer loses possession and fails as a plaintiff, and the time limit for notifying the seller of a lawsuit.

[POMPONIUS libro undecimo ad Sabinum. ] §21.2.29.prSi rem, quam mihi alienam uendideras, a domino redemerim, falsum esse quod Nerua respondisset posse te a me pretium consequi ex uendito agentem, quasi habere mihi rem liceret, Celsus filius aiebat, quia nec bonae fidei conueniret et ego ex alia causa rem haberem.
[POMPONIUS, On Sabinus, Book Eleven] If I have bought back from the owner a thing which you had sold to me as belonging to another, Celsus the son used to say that the opinion which Nerva had given—namely, that you, by bringing an action on the sale, could recover the price from me, as if it were permitted for me to hold the thing—is false, because it would neither agree with good faith, and I would hold the thing from another cause.
§21.2.29.1Si duplae stipulator ex possessore petitor factus et uictus sit, quam rem si possideret retinere potuerit, peti ita autem utiliter non poterit, uel ipso promissor duplae tutus erit uel certe doli mali exceptione se tueri poterit, sed ita, si culpa uel sponte duplae stipulatoris possessio amissa fuerit.
If the stipulator of the double has become a plaintiff instead of a possessor and has been defeated—which thing, if he had possessed it, he would have been able to retain—but it cannot be sued for effectively in this way, the promisor of the double will either be safe by the law itself or at least will be able to defend himself by the plea of fraud; but only if the possession was lost through the fault or voluntary act of the stipulator of the double.
§21.2.29.2Quolibet tempore uenditori renuntiari potest, ut de ea re agenda adsit, quia non praefinitur certum tempus in ea stipulatione, dum tamen ne prope ipsam condemnationem id fiat.
Notice can be given to the seller at any time to be present for the conduct of the matter, because no definite time is prescribed in that stipulation, provided, however, that this does not happen close to the judgment itself.

Notes

  1. 21.2.29.prCelsus filius aiebat — The main clause of the sentence is Celsus filius aiebat ("Celsus the son used to say"), which governs the preceding accusative and infinitive construction falsum esse... as indirect speech. Within this construction, the clause quod Nerua respondisset contains another accusative and infinitive construction posse... representing the content of Nerva's response, resulting in a multi-layered nested structure.
  2. 21.2.29.1quam rem si possideret retinere potuerit — The relative pronoun quam is placed at the beginning, referring to the object sold, and a conditional clause si possideret ("if he had possessed it") is nested within this relative clause. The apodosis retinere potuerit (literally "he would have been able to retain") represents a counterfactual result, expressed here in the perfect subjunctive due to the general subjunctive environment or sequence of tenses.
  3. 21.2.29.1peti — The present passive infinitive of petere ("to claim/sue"). It is used impersonally to mean "a claim cannot be effectively made in this way" (i.e., from the position of a defeated plaintiff). By omitting a specific subject, it generalizes the impossibility of bringing an action based on eviction.
  4. 21.2.29.2renuntiari potest — An impersonal passive construction ("notice can be given"). It refers to the buyer giving notice of the lawsuit to the seller (uenditori in the dative). Because renuntiare governs the dative, its passive voice is formed impersonally to express an objective possibility without specifying the agent.

Cite this passage

Justinian I, The Digest of Justinian §21.2.29.pr-21.2.29.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:21.2.29.pr-21.2.29.2

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