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Justinian I · The Digest of Justinian §27.3.2.pr-27.3.2.2

Conditions of the Action on Accounts and Concurrence with Theft

Passage 3996 of 9271 · Latin

Summary

This section defines the requirements for bringing the action for embezzlement of accounts, clarifies its concurrence with the action of theft and condictio, and analyzes the nature of its double damages.

[PAULUS libro octauo ad Sabinum. ] §27.3.2.prActione de rationibus distrahendis nemo tenetur, nisi qui in tutela gerenda rem ex bonis pupilli abstulerit.
[PAULUS in his eighth book on Sabinus] No one is liable under the action for the embezzlement of accounts, except one who, in administering the guardianship, has taken something from the property of the ward.
§27.3.2.1Quod si furandi animo fecit, etiam furti tenetur.
But if he did this with the intention of stealing, he is also liable for theft.
utraque autem actione obligatur et altera alteram non tollet.
Moreover, he is bound under both actions, and one does not extinguish the other.
sed et condictio ex furtiua causa competit, per quam si consecutus fuerit pupillus quod fuerit ablatum, tollitur hoc iudicium, quia nihil absit pupillo.
But also, a condictio on account of theft lies, through which if the ward has recovered what was taken, this trial is extinguished, because nothing is missing to the ward.
H §27.3.2.2aec actio licet in duplum sit, in simplo rei persecutionem continet, non tota dupli poena est.
This action, although it is for double the value, contains in the single value the recovery of the thing, and the whole of the double is not a penalty.

Notes

  1. 27.3.2.prin tutela gerenda — A gerundive construction consisting of the preposition 'in' and the gerundive 'gerenda' agreeing with 'tutela' (ablative singular feminine), indicating the circumstance of 'administering the guardianship'.
  2. 27.3.2.1furti — A genitive of charge (genitive of crime) used with the verb 'teneo' (in the passive 'tenetur' meaning 'is held liable for').
  3. 27.3.2.1nihil absit pupillo — The verb 'absit' is the present subjunctive of 'absum'. In the causal 'quia' clause, the subjunctive is used to present the conceptual or logical condition that 'nothing is missing to the ward'. The noun 'pupillo' is in the dative of disadvantage associated with 'absum'.
  4. 27.3.2.2licet in duplum sit — A concessive clause introduced by the conjunction 'licet' (although) followed by the present subjunctive 'sit', leading to a contrastive statement in the main clause.

Cite this passage

Justinian I, The Digest of Justinian §27.3.2.pr-27.3.2.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:27.3.2.pr-27.3.2.2

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