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Justinian I · The Digest of Justinian §25.2.1.pr

Property Removed by a Wife and the Special Action in Lieu of Theft

Passage 3676 of 9271 · Latin

Summary

Paulus explains the background of introducing a special action for property removed, summarizing the conflicting legal opinions on whether a wife can commit theft or be sued for theft by her husband.

[PAULUS libro septimo ad Sabinum. ] §25.2.1.prRerum amotarum iudicium singulare introductum est aduersus eam quae uxor fuit, quia non placuit cum ea furti agere posse: quibusdam existimantibus ne quidem furtum eam facere, ut Nerua Cassio, quia societas uitae quodammodo dominam eam faceret: aliis, ut Sabino et Proculo, furto quidem eam facere, sicuti filia patri faciat, sed furti non esse actionem constituto iure, in qua sententia et Iulianus rectissime est:
[PAULUS, on Sabinus, book 7.] A special action for property removed was introduced against a woman who was a wife, because it was not accepted that one could bring an action for theft against her: some thinking, as Nerva and Cassius do, that she does not even commit theft, because the partnership of life makes her in a way a mistress; others, as Sabinus and Proculus do, that she indeed commits theft, just as a daughter might do to her father, but that by established law there is no action for theft, in which opinion Julian also is most correctly of.

Notes

  1. §25.2.1.prnon placuit — The perfect tense of the impersonal verb placere, meaning 'it was not approved/accepted.' In legal contexts, it denotes the consensus or established opinion of jurists.
  2. §25.2.1.prquibusdam existimantibus — An ablative absolute construction introducing the subsequent accusative-and-infinitive clause (ne quidem furtum eam facere). The same participle existimantibus is implied in the contrasting phrase aliis.
  3. §25.2.1.prfurto quidem eam facere — While furto could be taken as an adverbial ablative ('by theft', 'secretly'), in symmetry with the preceding furtum ... facere, it is naturally understood to function as the object of the verb facere ('to commit theft'), equivalent to the variant reading furtum.

Cite this passage

Justinian I, The Digest of Justinian §25.2.1.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:25.2.1.pr

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