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Justinian I · The Digest of Justinian §21.2.57.pr-21.2.57.1

Eviction Action Barred by Victor's Death or Gift

Passage 3138 of 9271 · Latin

Summary

The text discusses how a buyer cannot bring an action on a stipulation if the winning party in an eviction suit dies without a successor before taking the thing, as the buyer's possession remains undisturbed, and considers whether the same applies if the thing is donated or bequeathed to the buyer.

[GAIUS libro secundo ad edictum aedilium curulium. ] §21.2.57.prHabere licere rem uidetur emptor et si is, qui emptorem in euictione rei uicerit, ante ablatam uel abductam rem sine successore decesserit, ita ut neque ad fiscum bona peruenire possint neque priuatim a creditoribus distrahi: tunc enim nulla competit emptori ex stipulatu actio, quia rem habere ei licet.
[GAIUS, Book II on the Edict of the Curule Aediles.] The buyer is deemed to have the right to hold the thing undisturbed even if he who defeated the buyer in the eviction of the thing dies without a successor before carrying off or leading away the thing, so that his goods can neither go to the treasury nor be privately sold off by creditors; for in this case, no action on the stipulation is available to the buyer, because he is allowed to hold the thing.
§21.2.57.1Quod cum ita est, uideamus, num et si ab eo qui uicerit donata legataue res fuerit emptori, aeque dicendum sit ex stipulatu actionem non nasci, scilicet si antequam abduceret uel auferret donauerit aut legauerit: alioquin semel commissa stipulatio resolui non potest.
Since this is so, let us consider whether, if the thing has been donated or bequeathed to the buyer by the person who won the suit, it should equally be said that the action on the stipulation does not arise, provided, of course, that he donated or bequeathed it before he led it away or took it away; for otherwise, a stipulation once forfeited cannot be undone.

Notes

  1. §21.2.57.prHabere licere rem uidetur emptor — Syntactically, this is a nominative with infinitive (NcI) construction where `emptor` is the nominative subject of the main verb `uidetur` and also acts as the logical subject of the infinitive phrase `habere licere rem`. `habere licere` is a traditional Roman legal term meaning "to hold undisturbed" or "to be permitted to possess lawfully".
  2. §21.2.57.prante ablatam uel abductam rem — This is an "ab urbe condita" participle construction (dominant use of the participle), where the preposition `ante` governs the accusative noun `rem` along with the perfect passive participles `ablatam uel abductam`. It translates not as "before the thing that was carried or led away," but as "before the carrying off or leading away of the thing."
  3. §21.2.57.1semel commissa stipulatio — The verb `committo` is used here in its technical legal sense within the context of a stipulation (stipulatio), meaning that a condition has been fulfilled or a breach has occurred, thereby "activating" or "forfeiting" the stipulation (making the action available). Thus, it refers to a stipulation that has once been triggered by a breach.

Cite this passage

Justinian I, The Digest of Justinian §21.2.57.pr-21.2.57.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:21.2.57.pr-21.2.57.1

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