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Justinian I · The Digest of Justinian §38.5.5.pr-38.5.5.1

Liability and Condemnation by Oath in the Fabian Action

Passage 6007 of 9271 · Latin

Summary

This section explains who is held liable under the Fabian action (both the recipient and the one who ordered the gift to be given to another) and how the condemnation amount is determined by the plaintiff's oath if the thing is not restored.

[PAULUS libro quadragensimo secundo ad edictum. ] §38.5.5.prTenetur Fabiana actione tam is qui accepit ipse, quam qui iussit alii dari id quod ipsi donabatur.
[PAULUS in the forty-second book on the Edict.] Under the Fabian action, both he who himself received the property and he who ordered that what was being donated to himself be given to another are held liable.
§38.5.5.1In actione Fauiana si res non restituatur, tanti damnabitur reus, quanti actor in litem iurauerit.
In the Fabian action, if the thing is not restored, the defendant will be condemned for as much as the plaintiff shall have sworn in court.

Notes

  1. §38.5.5.priussit alii dari id quod ipsi donabatur — The verb "iussit" governs an accusative with infinitive (A.C.I.) construction with the passive infinitive "dari", where "id" (the antecedent of the relative "quod") serves as the subject accusative of "dari". "ipsi" refers back to the subject of "iussit".
  2. §38.5.5.1tanti damnabitur reus, quanti actor in litem iurauerit — The correlatives "tanti" and "quanti" are genitives of value/price expressing the amount of condemnation ("damnabitur"). "in litem iurauerit" refers to the oath in court (iusiurandum in litem) by which the plaintiff estimates the value of the disputed object.

Cite this passage

Justinian I, The Digest of Justinian §38.5.5.pr-38.5.5.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:38.5.5.pr-38.5.5.1

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