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Justinian I · The Digest of Justinian §3.3.64.pr

Principal Taking over Litigation from a Defender

Passage 547 of 9271 · Latin

Summary

A rule stating that in a lawsuit where a defender has stepped in, if the principal party appears before the joinder of issue and requests to conduct the litigation in their own name, the request should be granted after an investigation of the circumstances.

[IDEM libro tertio regularum. ] §3.3.64.prIs, cuius nomine defensor exstitit, si ante litem contestatam in praesentia fuerit et postulet suo nomine litem suscipere, causa cognita audiendus est.
[THE SAME in the third book of Rules.] He, on whose behalf a defender has appeared, if before joinder of issue he is present and requests to undertake the litigation in his own name, must be heard after the case has been investigated.

Notes

  1. §3.3.64.prcausa cognita — An ablative absolute composed of the noun "causa" and the participle "cognita". Literally meaning "the cause having been investigated," in a legal context it indicates that the magistrate or judge must conduct a substantive inquiry (cognitio) into the specific circumstances before granting the request.
  2. §3.3.64.praudiendus est — A passive periphrastic conjugation consisting of the gerundive "audiendus" and the copula "est". While literally "he must be heard," in legal terminology it means that his request or plea is to be admitted or granted by the court.
  3. §3.3.64.prsuo nomine litem suscipere — The subject of the infinitive "suscipere" is the subject of the conditional clause "si" (which refers back to "Is" in the main clause). It denotes that the principal ("Is") undertakes the litigation in his own name, which had been initiated on his behalf by the "defensor".

Cite this passage

Justinian I, The Digest of Justinian §3.3.64.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:3.3.64.pr

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