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Justinian I · The Digest of Justinian §25.2.22.pr-25.2.22.1

Status of Wife Paying Assessment and Recovery by Heirs

Passage 3697 of 9271 · Latin

Summary

This text explains that a wife who has paid the assessed value of the litigation gains a position equivalent to a buyer, entitling her to exceptions and actions in rem, and outlines the means for the husband's heir to recover property removed in contemplation of death.

[IULIANUS libro nono decimo digestorum. ] §25.2.22.prSi propter res amotas egero cum muliere et lis aestimata sit, an actio ei danda sit, si amiserit possessionem? mouet me, quia dolo adquisiit possessionem.
[JULIANUS, Digest, book 19.] If I bring an action against a wife on account of property removed and the damages are assessed, should an action be granted to her if she loses possession? It makes me hesitate, because she acquired possession by fraud.
respondi: qui litis aestimationem suffert, emptoris loco habendus est.
I replied: he who bears the assessment of damages is to be regarded as being in the position of a buyer.
ideo si mulier, cum qua rerum amotarum actum est, aestimationem litis praestiterit, aduersus uindicantem maritum uel heredem mariti exceptionem habet et, si amiserit possessionem, in rem actio ei danda est.
Therefore, if the wife, against whom the action for property removed was brought, has paid the assessment of the damages, she has an exception against her husband or the heir of her husband who claims the property, and, if she loses possession, an action in rem must be granted to her.
§25.2.22.1Si mulier mortis causa res amouerit, deinde mortuus esset maritus, hereditatis petitione uel actione ad exhibendum consequi poterit heres id quod amotum est.
If a wife has removed property in contemplation of death, and subsequently her husband dies, the heir can recover what was removed by a petition for inheritance or by an action for production.

Notes

  1. §25.2.22.prmouet me — Literally "it moves me," expressing the jurist's hesitation or doubt. It refers to the reluctance to grant legal protection (an action in rem) to someone who originally acquired possession through bad faith (dolo).
  2. §25.2.22.premptoris loco habendus est — "Is to be regarded as being in the position of a buyer." This expresses an important rule of Roman law whereby a defendant who pays the assessed value of the litigation (litis aestimatio) is treated as having purchased the property, thus acquiring a legitimate title of possession as if they were a buyer.
  3. §25.2.22.prcum qua rerum amotarum actum est — A construction where the prepositional phrase cum qua containing the relative pronoun qua (referring to mulier) goes with the impersonal passive actum est (action was brought). It means "against whom the action for property removed was brought."
  4. §25.2.22.1mortis causa — "In contemplation of death" or "by reason of death." Here, it refers to the wife removing property in anticipation of death (either her own or her husband's), anticipating the changes in inheritance or property status that death would bring.

Cite this passage

Justinian I, The Digest of Justinian §25.2.22.pr-25.2.22.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:25.2.22.pr-25.2.22.1

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