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Justinian I · The Digest of Justinian §21.2.63.pr-21.2.63.2

Waiver of Notice and Eviction by the Treasury

Passage 3144 of 9271 · Latin

Summary

Discusses the effect of eviction when the necessity of notice is waived by agreement, the buyer's right of action upon eviction to the treasury in the seller's presence, and the impact of the buyer's fault in losing an appeal due to a procedural bar on recourse against the seller.

[MODESTINUS libro quinto responsorum. ] §21.2.63.prHerennius Modestinus respondit non obesse ex empto agenti, quod denuntiatio pro euictione interposita non esset, si pacto ei remissa esset denuntiandi necessitas.
[MODESTINUS from the fifth book of responses.] Herennius Modestinus responded that it is no obstacle to one suing on the purchase that notice on account of eviction had not been given, if the necessity of giving notice had been remitted to him by a pact.
Gaia Seia §21.2.63.1fundum a Lucio Titio emerat et quaestione mota fisci nomine auctorem laudauerat et euictione secuta fundus ablatus et fisco adiudicatus est uenditore praesente: quaeritur, cum emptrix non prouocauerat, an uenditorem poterit conuenire.
Gaia Seia had bought a tract of land from Lucius Titius, and when an issue was raised in the name of the treasury, she had cited the seller as warrantor, and eviction having followed, the land was taken away and adjudged to the treasury in the presence of the seller. It is asked, since the buyer had not appealed, whether she can sue the seller.
Herennius Modestinus respondit, siue quod alienus fuit cum ueniret siue quod tunc obligatus, euictus est, nihil proponi, cur emptrici aduersus uenditorem actio non competat.
Herennius Modestinus responded that, whether the land was evicted because it belonged to another when it was sold, or because it was pledged at that time, there is no reason proposed why the buyer should not have an action against the seller.
§21.2.63.2Herennius Modestinus respondit: si emptor appellauit et bonam causam uitio suo ex praescriptione perdidit, ad auctorem reuerti non potest.
Herennius Modestinus responded: if the buyer appealed and through his own fault lost a good case due to a procedural bar, he cannot return to the warrantor.

Notes

  1. §21.2.63.prex empto agenti — agenti is a substantivated present participle in the dative case, serving as the indirect object of the verb obesse (to be an obstacle to), modified by the prepositional phrase ex empto (by the action on purchase).
  2. §21.2.63.1auctorem laudauerat — 'had cited the seller as warrantor'. The verb laudare is used here in its technical legal sense of naming or summoning the seller (auctor) to defend the buyer's title in a pending lawsuit.
  3. §21.2.63.1cum ueniret — ueniret is the imperfect subjunctive of ueneo, uenire (to be sold, which functions as the passive of uendere), with fundus (the land) as the implied subject, meaning 'when it was being sold'.
  4. §21.2.63.2ex praescriptione — 'due to a procedural bar' or 'by prescription'. It refers to a situation where the buyer appealed but, through their own fault (uitio suo), lost what was otherwise a good case because of failing to meet a procedural time limit or deadline (praescriptio).

Cite this passage

Justinian I, The Digest of Justinian §21.2.63.pr-21.2.63.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:21.2.63.pr-21.2.63.2

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