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Justinian I · The Digest of Justinian §21.2.51.pr-21.2.51.4

Eviction by Judicial Error and Burial of the Seller

Passage 3132 of 9271 · Latin

Summary

On the rules that eviction due to a judge's error does not affect the seller, the enforcement of a stipulation for eviction when a slave set free after the seller's death is evicted, the loss of ownership and eviction action when a seller is buried with the buyer's consent, the expansion of obligations against heirs, and the defense against suing remaining co-obligors after action has been taken against one.

[IDEM libro octogesimo ad edictum. ] §21.2.51.prSi per imprudentiam iudicis aut errorem emptor rei uictus est, negamus auctoris damnum esse debere: aut quid refert, sordibus iudicis an stultitia res perierit? iniuria enim, quae fit emptori, auctorem non debet contingere.
[THE SAME, Book LXXX on the Edict.] If by the carelessness or error of a judge the buyer of a thing is evicted, we deny that the loss ought to be the seller's; or what difference does it make whether the thing was lost through the corruption or the stupidity of the judge? For an injustice done to the buyer ought not to affect the seller.
§21.2.51.1Si Titius Stichum post mortem suam liberum esse iussum uendiderit, mortuo deinde eo Stichus ad libertatem peruenerit, an stipulatio de euictione interposita teneat? et ait Iulianus committi stipulationem: quamuis enim Titius hoc casu denuntiari pro euictione non potuisset, heredi tamen eius denuntiari potuisset.
If Titius sold Stichus, who had been ordered to be free after Titius's death, and upon his death Stichus subsequently attained freedom, does the stipulation entered into concerning eviction hold? And Julian says that the stipulation is committed; for although Titius could not have been notified concerning the eviction in this case, his heir could nevertheless have been notified.
§21.2.51.2Si quis locum uendiderit et idem uenditor ab herede suo uoluntate emptoris in eo sepultus fuerit, actio de euictione intercidit: hoc casu enim emptor proprietatem amittet.
If anyone sells a place and the same seller is buried in it by his heir with the consent of the buyer, the action on eviction is extinguished; for in this case the buyer loses ownership.
§21.2.51.3Non mirum autem est, ut euicto homine de euictione teneatur heres, quamuis defunctus non similiter fuerit obstrictus, cum et aliis quibusdam casibus plenior aduersus heredem uel heredi competat obligatio, quam competierat defuncto: ut cum seruus post mortem emptoris heres institutus est iussuque heredis emptoris adiit hereditatem: nam actione ex empto praestare debet hereditatem, quamuis defuncto in hoc tantum fuit utilis ex empto actio, ut seruus traderetur.
Moreover, it is not surprising that, when a slave is evicted, the heir is held liable for eviction, even though the deceased was not bound in a similar way, since also in certain other cases a more complete obligation exists against or in favor of the heir than had existed for the deceased: as when a slave is instituted as heir after the death of the buyer and enters upon the inheritance by order of the buyer's heir; for he must deliver the inheritance by the action on purchase, although for the deceased the action on purchase was useful only to the extent that the slave should be delivered.
§21.2.51.4Si plures mihi in solidum pro euictione teneantur, deinde post euictionem cum uno fuero expertus, si agam cum ceteris, exceptione me esse repellendum Labeo ait.
If several persons are bound to me in solidum for eviction, and after the eviction I have sued one of them, Labeo says that if I sue the others, I must be repelled by an exception.

Notes

  1. §21.2.51.prauctoris damnum esse debere — auctoris is a possessive genitive. The phrase means "we deny that the loss ought to be the seller's (auctor's) burden," implying that losses resulting from a judge's error or misconduct must be borne by the buyer, not the seller.
  2. §21.2.51.1committi stipulationem — The passive infinitive of committo. This is a technical legal expression meaning that the condition of the stipulation (stipulatio) has been fulfilled, thereby giving rise to a cause of action.
  3. §21.2.51.3actione ex empto praestare debet hereditatem — actione ex empto is an ablative of means ("by the action on purchase"). The object of praestare is hereditatem. It explains that since the slave became an heir, the buyer's heir can use the action on purchase to demand that the seller's heir deliver the entire inheritance acquired by the slave.
  4. §21.2.51.4exceptione me esse repellendum — An accusative with infinitive clause representing indirect speech after Labeo ait. exceptione is an ablative of means ("by a plea/defense"). It expresses Labeo's classical view on the consumptive effect of joinder of issue (litis contestatio), where having once sued one co-obligor, a subsequent action against the remaining obligors is barred by an exception.

Cite this passage

Justinian I, The Digest of Justinian §21.2.51.pr-21.2.51.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:21.2.51.pr-21.2.51.4

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